United States v. Sutton, Gene L. Sr. , 191 F. App'x 452 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 2, 2006
Decided August 2, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-4420
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
The district court revoked Gene Sutton’s supervised release for the second
time and returned him to prison for a term of twelve additional months. Sutton
filed a notice of appeal, but his appointed counsel now moves to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he cannot find a nonfrivolous
basis for the appeal. Sutton filed a “Motion for Request for Release,” which we
construed as his response to his attorney’s motion. See United States v. Sutton, No.
05-4420 (7th Cir. July 6, 2006); see also Cir. R. 51(b). We limit our review to those
potential issues identified in the brief accompanying counsel’s motion and in
Sutton’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
In 2002 Sutton was convicted of possession of marijuana with intent to
distribute, 21 U.S.C. § 841(a)(1), (b)(1)(D), and sentenced to 46 months’
No. 05-4420 Page 2
imprisonment and three years’ supervised release. Sutton served his term of
incarceration and just prior to his release was given written notice of the conditions
of his supervision. He refused to sign the notice because, he said, he did not consent
to the conditions. Corrections officials then explained those conditions verbally.
Sutton violated them almost immediately by failing to report to his probation officer
within 72 hours of his release and leaving the Central District of Illinois without
permission. The district court accordingly revoked his supervision and
reimprisoned Sutton for six months, followed by an additional two years’ supervised
release. Sutton appealed, but his appointed lawyer concluded that the case was
frivolous and asked to withdraw under Anders. We granted that motion and
dismissed the appeal. United States v. Sutton, 2006 WL 391571 (7th Cir. Feb. 21,
2006).
Prior to the completion of Sutton’s new term of imprisonment, his probation
officer sent him a letter that explained the conditions of his supervised release and
informed him when his first appointment to meet with her was scheduled. Sutton
refused to sign and return the letter as she requested, but he was nonetheless
released from custody. He again violated the terms of his release by failing to
report to the probation office within 72 hours of his release, and his probation
officer petitioned the court to revoke his supervised release. The district court
granted the petition and this time reimprisoned Sutton for another twelve months.
In his Anders submission, Sutton’s newest lawyer considers the same
potential issue that prior counsel evaluated in the last appeal: whether it would be
frivolous for Sutton to argue that the district court was powerless to revoke his
supervision for violating conditions for which Sutton never gave his consent.
Counsel concludes, as did we in Sutton’s first appeal, that this potential issue would
be frivolous because Sutton’s consent to the conditions of his supervised release was
not necessary for those conditions to be enforceable. Sutton received actual notice
of the conditions when he was released from custody, and therefore the district
court was authorized to revoke his supervised release for violating those conditions.
See 18 U.S.C. §§ 3583(f), 3603(1); United States v. Arbizu, 431 F.3d 469, 470 (5th
Cir. 2005) (per curiam) (collecting cases).
Sutton, in his response to counsel’s submission, argues that the district court
did not have jurisdiction to revoke his supervised release. He would have us believe
that the district court’s role ended when he was turned over to the Bureau of
Prisons. But this argument is frivolous because the sentencing court retains
jurisdiction to terminate, modify, or revoke an unexpired term of supervised
release. See 18 U.S.C. § 3583(e); United States v. Monteiro, 270 F.3d 465, 472 (7th
Cir. 2001); United States v. Lilly, 206 F.3d 756, 762 (7th Cir. 2000).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS this
appeal.