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,

Plaintiff-Appellee,

v.

GENE L. SUTTON, SR.,

Defendant-Appellant.

Appeal from the United States District

Court for the Central District of Illinois

No. 01-20017-01

Michael M. Mihm, 

Judge.

O R D E R

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’

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
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.