Anders Dismissal Where “Serious Bodily Injury” and Permanent-Scarring Enhancement Are Supported and Sentencing Objections Are Waived

1. Introduction

In United States v. Julian Breal (7th Cir. Jan. 9, 2026) (nonprecedential order), the Seventh Circuit dismissed Breal’s criminal appeal after appointed appellate counsel moved to withdraw under Anders v. California. Breal had been convicted by a jury of assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6) for a brutal beating of his cellmate at FCI Thomson. The district court imposed an above-guidelines sentence of 108 months, consecutive to Breal’s lengthy preexisting federal sentence.

The appeal presented the familiar Anders question: whether any nonfrivolous appellate issue existed. Potential issue areas included jury instructions (including an omitted federal-jurisdiction element), sufficiency of the evidence on “serious bodily injury,” application of the permanent-injury enhancement under the Guidelines, and substantive reasonableness of an above-guidelines sentence. Breal also sought new counsel and raised complaints about trial counsel’s performance.

2. Summary of the Opinion

The Seventh Circuit granted counsel’s motion to withdraw and dismissed the appeal, concluding that the record revealed no nonfrivolous issues. The court held that:

Any challenge to the jury instructions was frivolous; an omitted federal-jurisdiction element was harmless given overwhelming evidence the assault occurred at FCI Thomson.
The evidence was sufficient for a rational jury to find “serious bodily injury,” including extreme physical pain and/or protracted and obvious disfigurement.
The seven-level guideline enhancement for permanent injury was properly applied based on scar evidence.
The 108-month above-guidelines sentence was substantively reasonable given the district court’s § 3553(a) analysis.
Breal waived a proposed sentencing complaint about consideration of a later assault by conceding at sentencing that the court could consider it and disputing only its weight.
Ineffective-assistance claims were unsuitable for direct appeal and should be pursued, if at all, on collateral review.
Because no nonfrivolous issues existed, the motion for appointment of new counsel was denied.

3. Analysis

3.1. Precedents Cited

Anders v. California, 386 U.S. 738, 744 (1967)
The foundational rule: if appointed counsel concludes an appeal is frivolous, counsel may seek withdrawal by filing an Anders submission identifying potential issues and explaining why they lack merit. The court then conducts its own review sufficient to confirm no nonfrivolous issues exist. Here, Anders supplied the procedural framework for dismissal.
United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014)
Bey supports the Seventh Circuit’s practice in Anders cases: when counsel’s submission is thorough, the court limits review to the issues counsel discusses and those raised by the defendant in a Rule 51(b) response. The panel expressly relied on this approach to structure its review.
United States v. Wilson, 698 F.3d 969, 970 (7th Cir. 2012)
Wilson guided the interpretation and application of “serious bodily injury” for § 113(a)(6), particularly “extreme physical pain” and “protracted and obvious disfigurement.” The court used Wilson to show that visible scarring months after the assault and the severity of the injuries can sustain the statutory threshold.
United States v. Maez, 960 F.3d 949, 964 (7th Cir. 2020)
Maez provided the harmless-error principle applied to the omitted jurisdiction element in the assault instruction. Even if an element was omitted, the error is harmless when the evidence on that element is overwhelming and uncontested. The court invoked Maez to foreclose a viable jury-instruction challenge.
United States v. Webster, 500 F.3d 606, 608 (7th Cir. 2007)
Webster supports treating permanent scarring as “obvious disfigurement” for guideline purposes. The court relied on Webster (and the Guidelines commentary) to confirm the appropriateness of the seven-level enhancement.
United States v. Cook, 108 F.4th 574, 585 (7th Cir. 2024)
Cook supplied the standard for reviewing above-guidelines sentences for substantive reasonableness: the sentence will be upheld if the district court adequately justifies the variance under § 3553(a). Cook underpinned the conclusion that Breal’s 108-month sentence was defensible.
United States v. Flores, 929 F.3d 443, 448 (7th Cir. 2019)
Flores reflects the waiver doctrine at sentencing: when a defendant affirmatively concedes a point, appellate review is generally foreclosed. The panel used Flores to hold Breal waived a challenge to the court’s consideration of the later assault because counsel agreed it could be considered and disputed only weight.
United States v. Cates, 950 F.3d 453, 457 (7th Cir. 2020)
Cates embodies the Seventh Circuit’s preference that ineffective-assistance claims be litigated on collateral review, where a factual record can be developed. The panel cited Cates to reject Breal’s complaints about trial counsel as issues for direct appeal.

3.2. Legal Reasoning

A. The Anders screen: narrowing review to plausible issues

The order reflects a standard Seventh Circuit Anders method: once counsel’s discussion is “thorough,” the court does not independently roam the record for hypothetical issues; it addresses the issues counsel identifies and those the defendant articulates in a Rule 51(b) response. This approach promotes efficiency while still safeguarding the defendant’s right to a meaningful review for nonfrivolous error.

B. Jury instructions: harmlessness defeats a missing-element claim

The most legally sensitive instruction point was the omission of an assault element: that the offense occur in a place within federal jurisdiction. The panel treated this as, at most, an error subject to harmless-error analysis. Because the evidence that the assault occurred at FCI Thomson was “overwhelming,” the omission could not have affected the verdict. This reasoning tracks Maez and reflects the principle that not every instructional defect warrants reversal when the missing fact is undisputed and conclusively shown.

C. Sufficiency: “serious bodily injury” supported by the record

The court emphasized that the statutory definition encompasses “extreme physical pain” and “protracted and obvious disfigurement,” and pointed to (i) severe fractures requiring surgical repair with plates and screws, and (ii) scars still visible more than six months later. On that record, the order concludes a rational jury could find the statutory element beyond a reasonable doubt, making a sufficiency challenge frivolous under Wilson’s guidance.

D. Guidelines: permanent injury enhancement grounded in scarring evidence

The seven-level enhancement under U.S.S.G. § 2A2.2(b)(3)(C) turned on whether Martinez sustained a “permanent or life-threatening bodily injury.” The court focused on “permanent scarring” as “obvious disfigurement,” consistent with U.S.S.G. § 1B1.1, cmt.1(J) and Webster. Because testimony “conclusively established” scarring, the enhancement was not a realistic appellate target.

E. Substantive reasonableness: an above-guidelines sentence justified by § 3553(a)

The district court varied upward from 41–51 months to 108 months, citing the beating’s severity, Breal’s extensive and violent criminal history (including conduct not captured by criminal history category II), institutional misconduct, and the need to protect others in custodial settings. Under Cook, the question is whether the district court provided a sufficient, reasoned explanation grounded in § 3553(a). The panel concluded it did.

F. Waiver at sentencing: conceding “consideration” forecloses appellate attack

Breal’s Rule 51(b) response suggested the sentencing court should not have considered an assault on a state correctional officer that occurred after his federal conviction and in a state jail. The panel treated this argument as waived: counsel told the sentencing judge that Breal’s objection went to “weight,” not “consideration.” Under Flores, that kind of affirmative concession is waiver, not forfeiture, and it generally bars appellate review.

G. Ineffective assistance: deferred to collateral review

Breal alleged counsel dissuaded him from testifying, blocked a self-defense theory, and failed to communicate. The panel applied the Cates principle that ineffective-assistance claims should be raised collaterally, where evidence can be gathered about attorney advice, strategic choices, and client communications.

3.3. Impact

Practical reinforcement of Anders discipline (though nonprecedential): The order underscores what typically makes Anders dismissal likely—harmless instructional error, strong evidence, guideline enhancements directly supported by the record, and a thoroughly explained § 3553(a) variance.
Assault prosecutions: The decision illustrates how “serious bodily injury” can be proven through medical testimony, imaging, surgical intervention, and lasting scar evidence, and how those same facts can support the “permanent injury” enhancement.
Sentencing litigation strategy: It highlights the appellate consequences of conceding that a sentencing court may consider certain conduct. When defendants want to preserve a “cannot consider at all” argument, they must avoid affirmative concessions that create waiver.
Nonprecedential limitation: The order is expressly “NONPRECEDENTIAL DISPOSITION,” so it does not create binding circuit law, but it is informative for counsel evaluating similar issue profiles under existing Seventh Circuit standards.

4. Complex Concepts Simplified

Anders motion / Anders brief: A procedure allowing appointed counsel to withdraw when, after careful review, counsel finds no nonfrivolous appellate issues. The court independently checks the identified issue areas before dismissing.
Rule 51(b) response (Seventh Circuit): A mechanism allowing a defendant to respond to counsel’s Anders submission and identify issues the defendant believes matter.
Rule 29 motion: A request for judgment of acquittal arguing the evidence is legally insufficient for conviction.
Harmless error (jury instructions): Even if the court made a mistake (e.g., omitted an element), the conviction stands if the mistake could not have affected the verdict because the missing fact was overwhelmingly proven.
“Serious bodily injury” under § 113: Includes injuries involving “extreme physical pain” or “protracted and obvious disfigurement,” among other definitions incorporated by statute.
Guidelines enhancement for permanent injury: Under the assault guideline, permanent scarring can qualify as “obvious disfigurement,” supporting a higher offense level.
Substantive reasonableness: The appellate inquiry into whether the length of the sentence is justified by the statutory sentencing factors and the judge’s explanation, especially when varying above the guideline range.
Waiver vs. forfeiture: Waiver is an intentional relinquishment (often eliminating appellate review); forfeiture is a failure to object (often reviewed for plain error). Breal’s concession at sentencing was treated as waiver.
Collateral review: A post-conviction process (typically under 28 U.S.C. § 2255) where claims like ineffective assistance are litigated with a fuller factual record.

5. Conclusion

United States v. Julian Breal is a tightly reasoned Anders disposition applying established Seventh Circuit doctrine: overwhelming evidence and lasting scarring supported both the “serious bodily injury” element and the permanent-injury enhancement; any instructional omission was harmless; an above-guidelines sentence was sustained where the district judge thoroughly grounded the variance in § 3553(a); a conceded sentencing point was waived; and ineffective-assistance allegations were deferred to collateral review. Although nonprecedential, the order provides a clear roadmap of how these doctrines operate together to foreclose appellate relief in a record-strong prison-assault case.