                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                                Submitted April 12, 2018
                                 Decided April 12, 2018

                                         Before

                           JOEL M. FLAUM, Circuit Judge

                           DIANE S. SYKES, Circuit Judge

                           DAVID F. HAMILTON, Circuit Judge

No. 17-2735

UNITED STATES OF AMERICA,                    Appeal from the United States District Court
     Plaintiff-Appellee,                     for the Central District of Illinois.

      v.                                     No. 07-30083-001

NATHANIEL L. CAPLER,                         Sue E. Myerscough,
    Defendant-Appellant.                     Judge.

                                       ORDER

        Ten years ago Nathaniel Capler pleaded guilty to two counts of distributing
crack cocaine, 21 U.S.C. § 841(a)(1), and eventually he was sentenced to 125 months’
imprisonment and 6 years’ supervised release. Nine months after Capler’s release from
prison, his probation officer petitioned the district court to revoke Capler’s supervised
release. See 18 U.S.C. § 3583(e)(3). In the petition the officer alleged that Capler had
failed three drug tests in February and March 2017 and had admitted recent drug use.
The assigned magistrate judge released Capler on bond, pending a revocation hearing,
and ordered him to get inpatient substance-abuse treatment. In the months that
followed his treatment, Capler tested positive for drugs three more times, though he
denied using drugs at any time after he completed the program in June.
No. 17-2735                                                                             Page 2

        Although these more recent failed tests were the subject of a violation
memorandum and request to revoke Capler’s bond, the supervised-release revocation
hearing proceeded on the original revocation petition, charging just the three positive
tests in February and March. In his sentencing memorandum, Capler did not admit or
deny drug use at those times. He argued that the court should apply the exception to
mandatory supervised release revocation for drug-addicted supervisees and that he
should be directed to get further drug treatment rather than imprisoned. He also urged
the court to consider his failed tests as Grade C violations for drug use, rather than the
more serious Grade B violation of possessing drugs, to produce a lower recommended
term of reimprisonment.

       After the district judge assured herself of Capler’s competence and
understanding, Capler waived his right to an evidentiary hearing regarding the alleged
violations. The judge revoked Capler’s supervised release based on the allegations in
the petition and sentenced Capler to 27 months’ imprisonment and 5 years’ supervised
release. Capler filed a notice of appeal, but his appointed attorney asserts that the
appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967).

       Because Capler challenges the revocation of his supervised release, he does not
have a constitutional right to counsel except to the extent that he challenges the
appropriateness of revocation or asserts substantial grounds in mitigation. See Gagnon v.
Scarpelli, 411 U.S. 778, 790 (1973); United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016).
Nonetheless, our practice is to apply the safeguards of Anders to our review of counsel’s
motion to withdraw. Brown, 823 F.3d at 394. We notified Capler that he could respond
to counsel’s motion, but he has not done so. See CIR. R. 51(b). Because the analysis in the
brief appears to be thorough, we focus our review on the subjects counsel discusses.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d
551, 553 (7th Cir. 1996).

       Counsel first questions whether Capler could challenge the factual basis for the
revocation. A district judge may revoke a defendant’s supervised release if the judge
finds, by a preponderance of the evidence, that the defendant illegally possessed or
used a controlled substance. 18 U.S.C. § 3583(d), (e)(3), (g)(1). In the district court,
Capler waived his right to an evidentiary hearing, thus allowing the judge to find that
Capler committed the charged violations. True, Capler insisted at the hearing that he
had been clean since he completed drug treatment in June, but the revocation was based
on violations that preceded that program. And, besides waiving his right to contest the
charged violations, he implicitly admitted that he had used drugs around the time
No. 17-2735                                                                            Page 3

alleged in the petition to revoke when he argued that he had failed drug tests in June
and July because marijuana “takes 45 to 90 days to get out of your system.” Thus we
agree with counsel that it would be frivolous for Capler to challenge the district judge’s
finding that he illegally used and possessed controlled substances.

        Next counsel contemplates the argument that the district judge abused her
discretion when she revoked Capler’s supervised release instead of ordering additional
drug treatment, see 18 U.S.C. § 3583(d). As counsel correctly observes, however, the
district judge acknowledged her authority to order drug treatment and explained why
reimprisonment was warranted instead: Capler refused to “admit all instances” of drug
use, and his prior drug treatment—including the 21 days of residential treatment after
his release from prison—had not led to “any extended period of sobriety.” The judge
did not find Capler’s denials of new usage credible. On this record, we would not
conclude that the judge abused her discretion by ordering reimprisonment.

       Finally, counsel considers whether Capler could argue that his term of
reimprisonment is plainly unreasonable. We will uphold the term if the judge
accurately calculated the reimprisonment range and considered the policy statements in
Chapter 7 of the Sentencing Guidelines, the pertinent factors in 18 U.S.C. § 3553(a), and
Capler’s arguments in mitigation. See Brown, 823 F.3d at 394. Because Capler has two
prior convictions for controlled substance offenses, simple possession of controlled
substances is a Grade B violation for him. See 21 U.S.C. § 844(a); U.S.S.G. § 7B1.1(a)(2);
United States v. Wheeler, 814 F.3d 856, 857–58 (7th Cir. 2016). So given Capler’s
Category VI criminal history at his original sentencing, the judge correctly found that
the recommended reimprisonment range was 21 to 27 months. See U.S.S.G. § 7B1.4(a).

        In sentencing Capler at the high end of that range, the judge considered the
relevant policy statements and statutory factors, including Capler’s history of failing to
comply with his conditions of supervision and his bond pending revocation. As other
aggravating factors the judge noted Capler’s recurring drug use, a protective order that
his wife recently had obtained against him, and his failure to report to his probation
officer that he was arrested for failing to appear at a court date. Because the judge
weighed the appropriate factors, a challenge to her choice of sentence would be
frivolous. See United States v. Jones, 774 F.3d 399, 404–05 (7th Cir. 2014); United States v.
Neal, 512 F.3d 427, 438 (7th Cir. 2008).

       Thus, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
