Judges: Per Curiam
Filed: Sep. 21, 2018
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 September 20, 2018 Decided September 21, 2018 Before ILANA DIAMOND ROVNER, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 17-3166 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Eastern District of Wisconsin. v. No. 13-CR-16-JPS JASON B. GU
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 September 20, 2018 Decided September 21, 2018 Before ILANA DIAMOND ROVNER, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge AMY J. ST. EVE, Circuit Judge No. 17-3166 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Eastern District of Wisconsin. v. No. 13-CR-16-JPS JASON B. GUI..
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NONPRECEDENTIAL DISPOSITION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 September 20, 2018
Decided September 21, 2018
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 17‐3166
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 13‐CR‐16‐JPS
JASON B. GUIDRY,
Defendant‐Appellant. J.P. Stadtmueller,
Judge.
O R D E R
On a limited remand, the district judge vacated five conditions of Jason Guidry’s
supervised release. Guidry appeals the district court’s judgment, but his appointed
lawyer asserts that the appeal is frivolous and seeks to withdraw. See Anders
v. California, 386 U.S. 738 (1967). Guidry has responded to counsel’s motion to
withdraw. See CIR. R. 51(b). Because the analysis in counsel’s brief appears to be
thorough, we limit our review to the subjects that counsel has discussed, plus any
additional issues that the defendant, disagreeing with counsel, believes have merit.
See United States v. Bey, 748 F.3d 774 (7th Cir. 2014).
No. 17‐3166 Page 2
Guidry pleaded guilty to one count of possession with intent to distribute heroin,
crack, and cocaine, 21 U.S.C. § 841(a)(1), and three counts of interstate travel for
purposes of prostitution, 18 U.S.C. § 2421. The judge sentenced him to 299 months’
imprisonment, a term that included three concurrent 120‐month sentences for the
interstate‐travel counts and one consecutive 179‐month sentence for the drug offense, as
well as three years’ supervised release. Guidry raised multiple issues on appeal,
including that five conditions of his supervised release were vague, overbroad, and
conflicting. See United States v. Thompson, 777 F.3d 368 (2015). We affirmed Guidry’s
convictions and prison sentence but vacated the five conditions and remanded this
matter solely for reconsideration of the supervised‐release conditions. See United States
v. Guidry, 817 F.3d 997 (7th Cir. 2016), cert. denied, 137 S. Ct. 156 (2016).
On remand, the parties suggested modifying some of the vacated conditions of
supervised release and eliminating others. The judge, however, chose to eliminate them
all; the unchallenged conditions remained. He elaborated that the imposition of
additional conditions would be “left for further consideration” until Guidry’s release
from prison in 16 years. The judge also refused to consider Guidry’s motions to
withdraw his guilty plea and to dismiss one of the § 2421 counts of his indictment,
explaining that these issues were not before the court on limited remand and noting
that Guidry’s case was currently pending in the Supreme Court of the United States.
In his Rule 51(b) response, Guidry complains that the district judge failed to rule
on his pro se motions to withdraw his guilty plea and dismiss a count of his indictment,
but this potential argument would be frivolous. He faults the judge for stating that these
motions were “simply not before this Court” because “[h]is case [was] currently
pending in the U.S. Supreme Court.” True, the judge incorrectly stated that Guidry’s
case was still pending before the Supreme Court, when in fact it had recently denied
certiorari. But that error “could not have affected the outcome of the case.” United States
v. Lewis, 842 F.3d 467, 474 (7th Cir. 2016). Because Guidry could have challenged his
guilty plea or indictment in his original appeal but failed to do so, these arguments
were waived. See United States v. Husband, 312 F.3d 247, 251 (7th Cir. 2002). And in any
event, we explicitly remanded Guidry’s case for reconsideration of specified conditions
of supervised release, so “the district court [was] limited to correcting that error.”
See United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996).
Counsel recognizes that the scope of our remand would limit Guidry from
raising his potential arguments, as well as any other that does not relate to the vacated
conditions of supervised release. See Guidry, 817 F.3d at 1010. Further, the district judge
No. 17‐3166 Page 3
eliminated all the challenged conditions and did not impose any new ones, so there is
not even an adverse ruling for Guidry to appeal. See Deposit Guar. Nat’l Bank v. Roper,
445 U.S. 326, 333 (1980) (explaining that only a party “aggrieved by a judgment or order
. . . may exercise the statutory right to appeal therefrom.”); see also 18 U.S.C. § 3742(a).
Last, counsel considers whether Guidry could argue that the judge erred by
saying that imposing new conditions of supervised release was “best left for further
consideration at such time as Defendant may become eligible for release” from prison.
But a district judge may impose conditions of supervised release at that time, although
we have said this approach has “drawbacks” under certain circumstances. See
United States v. Orlando, 823 F.3d 1126, 1133 (7th Cir. 2016); 18 U.S.C. § 3583(e)(2). In any
event, the issue would not yet be ripe for appellate review, as the judge merely
speculated that the terms of supervised could be modified in the future. See United
States v. Miller, 829 F.3d 519, 530 (7th Cir. 2016). Should the conditions later be changed
or expanded, Guidry could challenge them at that time. See United States v. Neal, 810
F.3d 512, 520 (7th Cir. 2016); 18 U.S.C. § 3583(e)(2).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.