NONPRECEDENTIAL DISPOSITION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 Wisconsin.

No. 0758 3:17CR00092-001

James D. Peterson, Chief 

Judge.

Order

Mitrel Anderson pleaded guilty to possessing at least 50 grams of methamphetamine, 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 Sentencing Guidelines) plus four years’ supervised release. Anderson filed a notice of appeal, 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 
No. 18-1870 Page 2

“[a]bstain from the use of alcohol” during his supervised release. We agree with counsel 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 pornography 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 restaurants 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 protecting 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 Constitution 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.