United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 17, 2022

Decided October 18, 2022 

Before

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 22-1695 

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v. 

DONALD J. FRIESE,

Defendant-Appellant. 

Appeal from the United States District 

Court for the Southern District of Illinois.

No. 3:07-CR-30191-DWD 

David W. Dugan, 

Judge. 

O R D E R

The district court revoked Donald J. Friese’s supervised release after police

officers arrested him driving a car that contained controlled substances. He appeals the 

revocation and the 17-month prison sentence, but his appointed counsel asserts that the 

appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). 

Friese does not have an unqualified right to counsel in appealing the revocation. 

See Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973). Still, our practice is to follow the Anders

framework in this context. See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). 

Counsel’s brief explains the nature of the case and addresses potential issues that an 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with FED. R. APP. P. 32.1
No. 22-1695 Page 2 

appeal of this kind would typically involve. Friese has not responded with additional 

arguments for our consideration. See CIR. R. 51(b). Because counsel’s analysis appears 

thorough, we limit our review to the issues she discusses. See United States v. Bey, 

748 F.3d 774, 776 (7th Cir. 2014). 

Friese pleaded guilty in 2008 to conspiracy to possess cocaine base, 21 U.S.C. 

§§ 841, 846, and unlawful possession of a firearm as a felon, 18 U.S.C. § 922(g)(1). The 

district court sentenced Friese to 125 months’ imprisonment and three years’ supervised 

release. He served his prison term and part of his supervised release before being 

reimprisoned for violations of the conditions of supervision. He began serving 

supervised release again in January 2022. 

That February, police officers in Sparta, Illinois, arrested Friese for possession of 

methamphetamine and driving with a revoked license after pulling over the car he was 

driving for a traffic violation. The government then petitioned to revoke Friese’s 

supervised release, alleging that the conduct leading to his arrest also violated multiple 

conditions of his supervised release. The most serious alleged violations were 

possessing drugs and committing another state or federal crime (driving with a revoked 

license and drug possession). The others were associating with someone engaged in 

criminal activity, traveling to Sparta without advance permission from his probation 

officer, not submitting a monthly report, and failing to attend substance-abuse 

treatment. Friese contested the petition’s factual allegations, and so the district court 

held a contested revocation hearing. 

At that hearing, two police officers—one who initiated the traffic stop and one 

who arrived on scene shortly thereafter—testified. According to their testimony, Friese, 

who was driving his girlfriend, his 17-year-old son, and another passenger, was 

stopped for driving with a broken taillight. Friese provided conflicting accounts of what 

he was doing in the area, and the officers discovered that his driver’s license was

revoked and that his girlfriend had an outstanding arrest warrant. A search of the car 

and passengers revealed methamphetamine, pills (later identified as a controlled 

substance), and small scales. The officers did not find any contraband on Friese: his son 

held the methamphetamine, the pills were on his girlfriend’s seat, and the scales were in 

her purse. Friese’s girlfriend later told police that the drugs were hers, and Friese’s son 

said that she had given them to him. Friese’s probation officer testified about the 

alleged administrative violations and what he learned of Friese’s arrest. Friese’s 

attorney cross-examined these witnesses, but Friese did not testify or submit evidence. 
No. 22-1695 Page 3 

The district court found by a preponderance of the evidence that Friese

constructively possessed methamphetamine, drove with a revoked license, associated 

with someone (his girlfriend) engaged in criminal activity, and did not comply with

location monitoring. As a result, it found him guilty of the four corresponding 

violations and not guilty of the rest. The court concluded that the methamphetamine

was Friese’s by inferring that Friese’s son was more likely to hold the drugs for his 

father than for his father’s girlfriend; it further cited Friese’s conflicting accounts of why 

he was in Sparta as evidence that Friese was part of the illegal activity. 

The court then determined that, under the policy statements in Chapter 7 of the 

Sentencing Guidelines, the recommended reincarceration range was 18 to 24 months. 

See U.S.S.G. § 7B1.4(a). But the statutory maximum under 18 U.S.C. § 3583(e)(3) was 

17 months and four days. The court sentenced Friese to 17 months’ incarceration with 

no supervised release. When determining the sentence, the court discussed Friese’s

criminal history and its concern that further supervised release would not be successful. 

In support of the motion to withdraw, counsel first considers whether Friese 

could raise a nonfrivolous challenge to the revocation of his supervised release. Counsel 

should not explore a possible challenge to revocation in an Anders brief unless the client, 

after counsel informs him of the risks, wants to challenge the revocation. See United 

States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016). It is unclear whether such a 

consultation occurred here. 

Regardless, we agree with counsel that a challenge to the revocation decision

would be frivolous. The court considered the testimony of two police officers and 

Friese’s probation officer, and we would review the findings based on that evidence 

only for clear error. See United States v. Patlan, 31 F.4th 552, 556 (7th Cir. 2022). The 

evidence of Friese’s drug possession, in particular, was not overwhelming, given the 

officers’ testimony that Friese’s girlfriend, who had the scales, claimed the 

methamphetamine as hers and that Friese’s son said he got it from her. But the district 

court was entitled to conclude that it was more likely than not that the drugs were 

Friese’s. The court explained that Friese’s son would be more likely to accept drugs

from Friese than his girlfriend and that Friese’s obfuscating with the officers made it 

likely that he was involved with the drugs in the car. And the court inferred that Friese 

knew about the scales in his girlfriend’s purse and that she had an outstanding warrant, 

and he was therefore knowingly interacting with someone engaged in criminal activity. 

A district court’s reasoned choice between permissible views of the evidence could not 

be clear error. See United States v. Waldman, 835 F.3d 751, 756 (7th Cir. 2016). 
No. 22-1695 Page 4 

Because there is no nonfrivolous challenge to the findings of fact, it also would 

be frivolous to argue on appeal that revocation was erroneous under 18 U.S.C. 

§ 3583(e)(3). The court held a hearing and gave Friese a chance to defend against the 

allegations as required by Federal Rule of Criminal Procedure 32.1, so there was no 

procedural issue. United States v. Jones, 774 F.3d 399, 403 (7th Cir. 2014). And its decision 

to revoke based on its findings was not an abuse of discretion: Revocation was 

mandatory under 18 U.S.C. § 3583(g)(1) because the court found that Friese possessed a 

controlled substance. Id. at 403–04. 

Counsel next considers whether Friese could contend that his prison sentence is 

based on a procedural error and rightly concludes that he lacks any nonfrivolous 

argument. The court properly determined that Friese’s most serious violations, 

possessing methamphetamine and committing a new state or federal crime, were Grade 

B. See U.S.S.G. § 7B1.1(a)(2), (b). The court then correctly calculated Friese’s guidelines

range of 18 to 24 months based on a Grade B offense and his criminal-history category 

of V from his original sentencing. See U.S.S.G. § 7B1.4(a). It then substituted the 

statutory maximum of 17 months and 4 days as the guidelines range, as required. See 18 

U.S.C. § 3583(e)(3); U.S.S.G. §§ 5G1.1(a), 7B1.4(b)(1). 

Finally, counsel considers, and correctly rejects, a potential challenge to the

reasonableness of the 17-month prison sentence. A sentence for a supervised-release 

revocation will be overturned only if “plainly unreasonable.” United States v. Dawson, 

980 F.3d 1156, 1165 (7th Cir. 2020). This is a high bar, made higher here because the 

sentence falls within the effective guidelines range and would therefore be presumed 

reasonable on appeal. See Jones, 774 F.3d at 404. Counsel has not identified any ground 

to rebut that presumption, nor could she. When determining the sentence, the court 

properly considered the § 3553(a) factors, including Friese’s significant criminal history 

and its concern that supervised release would not be an adequate deterrent. See Dawson, 

980 F.3d at 1166. 

We GRANT counsel’s motion to withdraw and DISMISS the appeal.