United States of America v. Michael O. Fryer, Jr.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 25, 2022
Decided October 27, 2022
Before
DIANE S. SYKES, Chief Judge
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-3327
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL O. FRYER, JR.,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Western Division.
No. 3:12-CR-50052(1)
Philip G. Reinhard,
Judge.
O R D E R
Michael Fryer pleaded guilty to bank robbery, 18 U.S.C. § 2113(a), (d), and was
sentenced to 78 months in prison and five years of supervised release. Within three
months of leaving prison, Fryer began violating the conditions of his supervised release.
He failed to submit a urine sample, participate in substance abuse counseling, and
timely report to his probation officer. The district judge admonished Fryer for these
violations but did not revoke supervised release. Fryer then committed five burglaries,
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-3327 Page 2
one of which resulted in a state-court conviction and prison sentence. The government
moved for revocation of Fryer’s federal supervised release for violating the condition
that he not commit another state or federal crime. After Fryer admitted to all five
burglaries, the district judge revoked his supervised release and sentenced him to 30
months’ reimprisonment and 24 months of additional supervised release. Fryer filed a
notice of appeal, but his attorney asserts that the appeal is frivolous and seeks to
withdraw under Anders v. California, 386 U.S. 738 (1967).
Fryer does not have an unqualified constitutional right to counsel in revocation
proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 789–91 (1973). Still, we apply the
Anders safeguards to ensure that all potential issues receive consideration. See United
States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Because counsel’s brief adequately
addresses the potential issues that an appeal of this kind might involve, and Fryer did
not respond to counsel’s motion, see C IR . R. 51(b), we limit our review to the issues
counsel raises. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first reports that Fryer has not said that he wants to challenge the
revocation or the underlying admissions. But counsel does not tell us—as we require
when counsel forgoes discussion of this issue—whether after consulting with his client
that his client confirmed he did not wish to challenge the revocation. See United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Wheaton, 610 F.3d 389, 390 (7th
Cir. 2010). This is an important part of the Anders process, and any time counsel omits
discussion of a guilty plea or uncontested revocation, we expect counsel to expressly tell
us (1) the nature of the consultation with his client and (2) his client’s informed decision.
Konczak, 683 F.3d at 349; Wheaton, 610 F.3d at 390.
In any event, raising such a challenge on appeal would be frivolous. We would
review for plain error because Fryer did not seek to withdraw his admissions in the
district court. United States v. Nelson, 931 F.3d 588, 590–92 (7th Cir. 2019). As the
transcript of the revocation hearing shows, Fryer understood the alleged violations and
possible penalties and was satisfied with his legal representation before he voluntarily
waived his right to contest the allegations and freely admitted that his conduct violated
the conditions of his release. See F ED. R. C RIM . P. 32.1(b)(2); United States v. Jones, 774
F.3d 399, 403 (7th Cir. 2014).
Counsel next considers whether Fryer could challenge his new terms of
imprisonment and supervised release, and rightly rejects any argument as frivolous.
First, he spots no procedural issues in the application of the policy statements in

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No. 21-3327 Page 3
Chapter Seven of the Sentencing Guidelines. Burglary in Illinois is punishable by a term
of imprisonment greater than one year, see 720 ILCS 5/19-1(a); 730 ILCS 5/5-4.5-35, and
thus, under the guidelines, it is a Grade B violation of Fryer’s supervised release,
see U.S.S.G. § 7B1.1(a)(2). The district judge noted that the recommended guidelines
range of reimprisonment—based on Fryer’s Grade B violations and criminal history
category of III at the time he was originally sentenced—was 8 to 14 months. See id.
§ 7B1.4(a). And both the 30-month prison sentence and 24-month supervised-release
term, though well above the recommended range, are below the statutory maximums.
The maximum prison sentence upon revocation was three years. See 18 U.S.C.
§§ 3583(e)(3), 2113(d), 3559(a)(2). Additional supervised release was limited to 60
months minus the 30-month term of reimprisonment; here, the 24-month supervised
release is less than that 30-month difference. See 18 U.S.C. § 3583(b)(1), (h).
We also agree with counsel that nothing in the record could show that either the
above-guidelines reimprisonment term or new supervised-release term is “plainly
unreasonable.” See United States v. Dawson, 980 F.3d 1156, 1165–66 (7th Cir. 2020). The
district judge, considering factors under 18 U.S.C. § 3553(a), explained that after he gave
Fryer “the opportunity” to remain on supervised release despite an initial spate of
violations, Fryer committed “a list of felonies.” The judge considered Fryer’s mitigating
arguments, including the financial, marital, and social challenges he faced. But the
judge decided that 30 months’ reimprisonment was appropriate to “deter [Fryer] and
protect the public.” The judge also explained that Fryer could more effectively face his
life challenges with the “encouragement” and “help” of probation officers during a new
term of supervised release. It would be frivolous to argue that these were unreasonable
conclusions.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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