United States of America v. Mitrel Y. Anderson

NONPRECEDENTIAL DISPOSITION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

-- 1 of 2 --

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.

-- 2 of 2 --