United States v. Mitrel Anderson

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 26, 2019
• Docket: 18-1870
• Status: Unpublished

Opinion

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 March 20, 2019 Decided March 26, 2019

Before

DIANE P. WOOD, Chief Judge

FRANK H. EASTERBROOK, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 18-1870 Appeal from the United States District Court for the UNITED STATES OF AMERICA, Western District of Wiscon- Plaintiff-Appellee, sin. v. No. 0758 3:17CR00092-001 MITREL Y. ANDERSON, James D. Peterson, Chief Defendant-Appellant. Judge.

Order

Mitrel Anderson pleaded guilty to possessing at least 50 grams of methampheta- mine, with intent to distribute it. 21 U.S.C. §841(a)(1), (b)(1)(B)(viii). The district court sentenced him to 71 months’ imprisonment (within the range recommended by the Sen- tencing Guidelines) plus four years’ supervised release. Anderson filed a notice of ap- peal, but his appointed counsel has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 (1967).

Counsel considers, and finds wanting, several possible appellate arguments. One of the possibilities would be a challenge to the district judge’s requirement that Anderson No. 18-1870 Page 2

“[a]bstain from the use of alcohol” during his supervised release. We agree with coun- sel that a challenge to this basic requirement would be frivolous, but counsel does not consider whether one of the implementing conditions could be contested even if the underlying prohibition is proper.

The judge ordered Anderson “not [to] patronize any taverns, bars, liquor stores, nightclubs or other establishments where the primary item of sale is alcohol.” Although in the district court Anderson did not object to this condition, so appellate review would be limited to a search for plain error. United States v. Adkins, 743 F.3d 176, 193–96 (7th Cir. 2014), holds that a similarly worded condition was indeed plain error. The condition in Adkins prohibited the defendant from “view[ing] or listen[ing] to any por- nography or sexually stimulating material or sexually oriented material or patroniz[ing] locations where such material is available.” We expressed concern that a broad reading of “patronize” and “available,” plus a broad interpretation of “sexually stimulating” (does it include the cover of Cosmopolitan at a supermarket’s checkout counter?), might prohibit a person on supervised release from participating in everyday activities, such as using public transportation or shopping for groceries.

The condition imposed on Anderson may present similar interpretive problems. Although the list of places where alcohol is served is smaller than the list of places where “sexually stimulating” material may be found, liquor is available at many restau- rants and the lobbies of many theaters. A person could have considerable difficulty knowing when sales of alcoholic beverages are the “primary” items (does this mean the source of a majority of revenue or only more revenue than any other item?) and could be in doubt whether the condition forbids even entering such a place without buying anything, because the word “patronize” is undefined. Perhaps additional language pro- tecting activities that the defendant reasonably believes consistent with the condition would alleviate the problems caused by uncertainty in application. Or the basic rule in the condition might be written to resolve difficulties such as majority-of-revenue versus other understandings of “primary”.

The principal question is not whether vagueness in this condition violates the Con- stitution but whether the federal judiciary can do better when giving persons notice of what is required. Courts do not follow the approach that anything compatible with the Constitution is good enough. There is a non-frivolous argument that the Judicial Branch can do better than this condition, so we deny the motion to withdraw. Counsel should brief this issue, along with any other that she deems appropriate. A briefing schedule will be set by separate order.