United States of America v. Fred T. Moore

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 25, 2024
Decided July 1, 2024
Before
CANDACE JACKSON-AKIWUMI, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-1330
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRED T. MOORE,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:07-CR-30027-SMY-1
Staci M. Yandle,
Judge.
O R D E R
Fred Moore appeals his five-year sentence imposed after his supervised release
was revoked. But his appointed counsel asserts that the appeal is frivolous and moves
to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). We grant the motion and
dismiss the appeal.
A defendant does not have an unqualified constitutional right to counsel in
revocation proceedings, see Gagnon v. Scarpelli, 411 U.S. 778, 789–90 (1973), so the Anders
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 24-1330 Page 2
safeguards need not govern our review. Even so, our practice is to apply them.
United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Because counsel’s analysis
appears thorough, we limit our review to the subjects she discusses. See id. (We notified
Moore of the motion, but he did not respond. See C IR . R. 51(b).)
Moore was released from prison in 2019 after serving a sentence for possessing
cocaine base with intent to distribute it, 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 851 (2007)
(Count 1); using a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)
(2007) (Count 2); and possessing a firearm as a felon, 18 U.S.C. § 922(g)(1) (2007) (Count
3). Two years after his release from prison, while he was on supervision for Counts 1
and 2, Moore violently assaulted his wife twice. Moore was charged in state court with
two counts of aggravated domestic battery causing great bodily harm, 720 ILCS § 5/12-
3.3(a); two counts of aggravated domestic battery with strangulation, id. § 5/12-3.3(a-5);
and three counts of domestic battery, id. § 5/12-3.2(a)(2). Soon after, Moore’s probation
officer petitioned the district court to revoke Moore’s supervised release for committing
a state crime, failing to provide a monthly report to his probation officer, changing his
residence without notifying his probation officer, and failing to notify his probation
officer that he was questioned by police.
At a hearing on the petition, Moore pleaded guilty to the violations and admitted
to the factual basis underlying each of them. The district court determined that the
reimprisonment range for his violations was 30 to 37 months, and Moore did not object
to that calculation. Moore requested a 30-month sentence with no additional term of
supervision, arguing in mitigation that he had not violated his supervised release for
two years; that he had reintegrated well into society by working two jobs, getting
married, and taking care of his grandchildren; and that his son passed away shortly
before the assaults.
But the district court, highlighting Moore’s criminal history, the violent nature of
the domestic assaults, and that Moore had credibly threatened to kill his wife,
determined that an above-range sentence was necessary to protect the public and deter
Moore from future crime. The court imposed the statutory maximum terms of five
years’ reimprisonment on Count 1 and on Count 2 to run concurrently, and five years’
supervised release on Count 1. (The maximum term of supervised release was life.)
In her motion to withdraw, counsel informs us that Moore does not want to
challenge the revocation of his supervision, and thus appropriately does not address
whether Moore’s admissions to the violations were knowing and voluntary.
See United States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016).

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No. 24-1330 Page 3
Counsel first considers whether Moore could argue that the district court’s
sentence was the result of a procedural error, but appropriately concludes that such a
challenge would be frivolous. Moore did not object to the procedure in the district
court, so we would review it for plain error. See id. The district court correctly
determined that Moore’s reimprisonment range was 30 to 37 months under Section
7B1.4(a)(2) of the Sentencing Guidelines—Moore’s aggravated domestic battery charges
were Grade A violations, see U.S.S.G. § 7B1.1(a)(1)(A)(i); United States v. Dowthard,
948 F.3d 814, 816, 819 (7th Cir. 2020) (Illinois aggravated domestic battery is a felony
with force as an element); his criminal history category was III, see U.S.S.G. § 7B1.4 cmt.
n.1; and he was on supervised release for possessing cocaine base and using a firearm in
furtherance of drug trafficking, which are class A felonies, see 18 U.S.C. § 3559(a). The
court also correctly stated the statutory maximum reimprisonment sentence of five
years on Counts 1 and 2. See 18 U.S.C. § 3583(e)(3), (h). Finally, Moore had the
opportunity to present mitigating arguments. See United States v. Yankey, 56 F.4th 554,
557–58 (7th Cir. 2023).
Counsel next correctly concludes that any challenge to the reasonableness of
Moore’s sentence would be frivolous. We would review the reasonableness of Moore’s
sentence under a “highly deferential” standard, overturning it only if the sentence was
“plainly unreasonable.” United States v. Childs, 39 F.4th 941, 944–45 (7th Cir. 2022). This
is so even though Moore received an above-range sentence, because the Sentencing
Commission issued only policy statements, rather than formal Guidelines, to govern
revocation sentences, indicating the district court has “more than usual flexibility” in
deciding such sentences. See id. at 945–46. Here, the court considered the serious nature
of Moore’s violations; the correct reimprisonment range under the Guidelines; the
statutory maximum; and the sentencing factors under 18 U.S.C. § 3553(a), including
Moore’s criminal history, the need to protect his wife and the public, and the need for
deterrence. This was more than enough to show that his revocation sentence was not
plainly unreasonable. Childs, 39 F.4th at 946.
Finally, counsel correctly observes that a direct appeal would not be the
appropriate place to challenge the effectiveness of Moore’s counsel in the revocation
proceedings. Massaro v. United States, 538 U.S. 500, 504–05 (2003).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.

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