United States v. Sutton, Gene L. , 168 F. App'x 102 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2006
Decided February 21, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-2654
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois
v. No. 01-20017-01
GENE L. SUTTON, SR., Michael M. Mihm,
Defendant-Appellant. Judge.
ORDER
In 2002 Gene Sutton was convicted of possession of marijuana with intent to
distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(D), and sentenced to 46 months’
imprisonment and three years’ supervised release. In December 2004, the Bureau
of Prisons released Sutton from Prairie Center halfway house in Champaign,
Illinois, and he began his term of supervised release. Approximately one month
later, Sutton’s probation officer petitioned to revoke his supervised release because
he violated the conditions of that release when he failed to timely report to the
probation office and left the Central District of Illinois without permission. The
district court granted the petition and reimprisoned Sutton for six months, followed
by an additional two years’ supervised release. Sutton filed a notice of appeal, but
his appointed lawyer now moves to withdraw because he cannot discern a
No. 05-2654 Page 2
nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738 (1967).
Sutton has not accepted our invitation to comment on counsel’s motion. See Cir.
R. 51(b). Because counsel’s supporting brief is facially adequate, we limit our
review to the sole potential issue identified by counsel. See United States v. Tabb,
125 F.3d 583, 584 (7th Cir. 1997).
In his Anders brief, counsel considers whether Sutton could argue that he
was not bound by the terms of his supervised release because he did not consent to
those terms. Counsel points, in particular, to language in 18 U.S.C. § 3624(e)
governing supervision after release that conditions a prisoner’s release on his
agreement to certain terms: “[n]o prisoner shall be released on supervision unless
such prisoner agrees to adhere to an installment schedule . . . to pay for any fine
imposed for the offense committed by such prisoner.” Because Sutton insists he did
not agree to adhere to the terms of his release, counsel asks whether the court had
authority to revoke Sutton’s supervised release.
Counsel correctly concludes that the plain terms of the last sentence of
§ 3624(e) apply only to a fine payment schedule. See Ross v. Thompson, 927 F.
Supp. 956 (N.D.W.Va. 1996), aff’d, 105 F.3d 648 (4th Cir. 1997) (unpublished table
decision). But no installment payment plan is at issue here.
Further, so long as Sutton received actual notice of the terms of his
supervised release, the district court was authorized to revoke Sutton’s supervised
release for violating those terms. See 18 U.S.C. §§ 3583(f), 3603(1); United States v.
Arbizu, 431 F.3d 469, 470 (5th Cir. 2005) (collecting cases). Here it is undisputed
that Sutton received notice of the conditions of his release. Sutton admitted at his
revocation hearing that he received a copy of the district court’s April 4, 2002
judgment that set forth the terms of his supervised release, including the
requirements that he report to the probation office in Urbana within 72 hours and
that he obtain permission before leaving the Central District of Illinois. Sutton also
signed a “Supervision Release Plan” while incarcerated that again advised him of
those same terms. In addition, the government presented uncontested testimony by
Prairie Center’s director that he gave Sutton the Notice of Arrival and Release form
setting forth the terms of his release and, when Sutton refused to sign it, verbally
explained to him the conditions of his release. Sutton therefore knew that his
supervised release was conditioned upon his engaging in certain conduct or
refraining from other conduct, and his signature on the Notice of Arrival and
Release was not necessary to make those conditions compulsory. See, e.g., Knox v.
Smith, 342 F.3d 651, 658 (7th Cir. 2003). Thus we agree with counsel that this
argument is frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.