United States of America v. Ray Allen Flener

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 18, 2022
Decided February 22, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-2628
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAY ALLEN FLENER,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 4:13-CR-40048-JPG-1
J. Phil Gilbert,
Judge.
O R D E R
After serving a prison sentence for falsely reporting to a federal officer that an
organization was planning multiple bombings, see 18 U.S.C. §§ 1001(a)(2), 1038(a)(1),
and less than two months into his second term of supervised release, Ray Flener
violated multiple conditions of his release. A revocation hearing ensued, and Flener
admitted the violations, including possessing methamphetamine. The district court
revoked his supervised release and sentenced him to 15 months in prison and no
additional supervised release. Flener filed a notice of appeal, but his attorney asserts
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 21-2628 Page 2
that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S.
738 (1967).
Flener does not have an unqualified constitutional right to counsel when
appealing a revocation order, see Gagnon v. Scarpelli, 411 U.S. 778, 789–90 (1973), so the
Anders safeguards need not govern our review. Even so, our practice is to follow them.
See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Counsel’s brief explains the
nature of the case and addresses potential issues that an appeal of this kind would be
expected to involve. Because her analysis appears thorough, and Flener has not
responded to counsel’s motion, see C IR . R. 51(b), we limit our review to the subjects that
counsel raises. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel, however, does not tell us—as she should—whether Flener wants to
challenge the revocation order or the admissions upon which it was based. See United
States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016); United States v. Knox, 287 F.3d 667,
670–71 (7th Cir. 2002). But nothing in the revocation-hearing transcript causes us to
doubt that the admissions were knowing and voluntary. Indeed, at the hearing Flener
confirmed that he was knowingly and voluntarily admitting the violations.
Counsel first considers whether Flener could argue that the court erred by
revoking his supervised release and properly concludes that this argument would be
frivolous. A judge must revoke supervised release upon finding that the defendant
possessed a controlled substance, 18 U.S.C. § 3583(g)(1); United States v. Jones, 774 F.3d
399, 403 (7th Cir. 2014), and Flener admitted doing so.
Next, counsel evaluates whether Flener could argue that the court erred in
calculating his sentencing range and appropriately concludes that it would be pointless
to do so. Based on Flener’s commission of a Grade B violation combined with a criminal
history category of IV, the court properly calculated an advisory range of 12 to 18
months under the Sentencing Guidelines’ policy statements. See U.S.S.G. § 7B1.4(a).
Counsel also properly discounts a possible argument that the court violated Rule
32.1 of the Federal Rules of Criminal Procedure. The court complied with that rule by
confirming that Flener had received written notice of the alleged violations and by
affording him an opportunity to present arguments in mitigation. See F ED. R. C RIM . P.
32.1(b)(2).

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No. 21-2628 Page 3
Counsel next explores but rightly rejects a challenge to the substantive
reasonableness of Flener’s 15-month prison term. We presume a term within the policy-
statement range like Flener’s to be reasonable, see United States v. Jones, 774 F.3d 399, 404
(7th Cir. 2014), and counsel has not identified any ground to rebut this presumption,
nor can we. The district court adequately addressed the 18 U.S.C. § 3553(a) factors,
alluding to Flener’s mental health issues, repeated supervision violations, and violent
criminal history. See § 3553(a)(1).
Finally, counsel considers whether Flener could argue that his lawyer’s
performance during the revocation proceedings was constitutionally deficient. This
assumes that Flener had a constitutional right to counsel, but that right attaches in
revocation proceedings only if the defendant contests the alleged violations or presents
substantial and complex grounds in mitigation. See Gagnon, 411 U.S. at 789–90; United
States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir. 2015). Those circumstances were not
present in Flener’s case because he admitted the violations. Moreover, as counsel notes,
such claims generally should be reserved for collateral review, when the defendant may
develop a full record, see Massaro v. United States, 538 U.S. 500, 504–05 (2003), and
particularly here, where counsel on appeal also represented the defendant in the district
court. See United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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