                        NONPRECEDENTIAL DISPOSITION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 October 20, 2015
                                Decided October 22, 2015

                                          Before

                        JOEL M. FLAUM, Circuit Judge

                        ANN CLAIRE WILLIAMS, Circuit Judge

                        DAVID F. HAMILTON, Circuit Judge



No. 15-1897

UNITED STATES OF AMERICA,                        Appeal from the United States District
     Plaintiff-Appellee,                         Court for the Southern District of Illinois.

       v.                                        No. 14-CR-30168-NJR-1

MONTE D. PERRY,                                  Nancy J. Rosenstengel,
    Defendant-Appellant.                         Judge.

                                        ORDER

       Monte Perry, a felon, sold an unregistered sawed-off shotgun to an informant.
Perry pleaded guilty to transferring a firearm in violation of the National Firearms Act,
26 U.S.C. § 5861(e), and possessing a firearm after a felony conviction, 18 U.S.C.
§ 922(g)(1). He was sentenced to a total of 33 months’ imprisonment, the bottom of the
guidelines range, and 2 years’ supervised release. Perry has filed a notice of appeal, but
his appointed lawyer asserts that the appeal is frivolous and seeks to withdraw. See
Anders v. California, 386 U.S. 738 (1967). Counsel has submitted a brief that explains the
nature of the case and addresses potential issues that an appeal of this kind might be
expected to involve. We invited Perry to comment on counsel’s motion, but he has not
done so. See CIR. R. 51(b). Because the analysis in the brief appears to be thorough, we
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focus our review on the subjects counsel discusses. See United States v. Bey, 748 F.3d 774,
776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).

        In his Anders brief, counsel represents that Perry has no interest in challenging his
guilty pleas, and thus the lawyer appropriately refrains from discussing the adequacy of
the plea colloquy, see FED. R. CRIM. P. 11(b), or the voluntariness of the pleas. See United
States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–
71 (7th Cir. 2002). Counsel also advises that he reviewed the district court’s application
of the sentencing guidelines but did not identify a potential claim of error.

        Counsel considers whether Perry could argue that the district court failed to
adequately address his arguments in mitigation, including that he had pledged to care
for his two children and to take advantage of his educational achievements in the field of
welding. Counsel correctly points out that any possible claim along these lines has been
waived because trial counsel, when asked by the judge if any sentencing argument
remained unaddressed, said no. See United States v. Cruz, 787 F.3d 849, 850 (7th Cir. 2015);
United States v. Donelli, 747 F.3d 936, 940–41 (7th Cir. 2014).

        Counsel next considers whether Perry could challenge his prison term as
unreasonable, but properly concludes that such a challenge would be frivolous. Perry’s
33-month sentence is within the guidelines range of 33 to 41 months and thus is
presumptively reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007); United States
v. Fletcher, 763 F.3d 711, 715 (7th Cir. 2014). Counsel has not identified anything in the
record rebutting that presumption, nor can we. The district court considered the
sentencing factors in 18 U.S.C. § 3553(a), including the serious nature of the § 5861(e)
violation, which the court concluded was not, as Perry said, a crime of opportunity. The
court balanced Perry’s history of criminal conduct and drug abuse against his recent
efforts to obtain a welding degree and care for his children. Moreover, the court
considered the need for incapacitation and specific deterrence for Perry and general
deterrence for the public, as well as the need to minimize sentencing disparities among
similarly situated defendants.

       Finally, counsel considers whether Perry could challenge the judge’s imposition
of a special condition of supervised release that authorizes Perry’s probation officer to
search, “at a reasonable time and in a reasonable manner, based upon reasonable
suspicion of contraband or evidence of a violation of a condition of release,” Perry’s
person, residence, real property, place of business, vehicle, and any other property
under his control. The probation officer had proposed this condition in the presentence
No. 15-1897                                                                         Page 3

report, and counsel objected that the language is too broad as applied to Perry. If the
search condition was meant to address his criminal history, Perry argued at sentencing,
it was unnecessary because all of his prior criminal conduct had occurred more than
seven years earlier while he was a teenager, and none of the previous offenses were
committed after the birth of his first child in 2008. The district court overruled Perry’s
objection citing the seriousness of Perry’s offense (the illegal sale of a sawed-off
shotgun), Perry’s history of drug offenses, and the case agent’s testimony that Perry had
told the informant about a previous gun sale and his desire to obtain more guns. Because
the judge made adequate findings based on Perry’s offenses and his personal history
and characteristics to support imposition of the condition, we agree with counsel that
any argument related to the imposition of the condition would be frivolous. See United
States v. Kappes, 782 F.3d 828, 847, 860–61 (7th Cir. 2015).

       Counsel does not mention three other conditions of supervised release that we
have previously criticized. First, we have said that language requiring Perry to notify his
probation officer of any “change . . . in employment” leaves unclear whether this
condition applies only to “changing employers or also includes changing from one
position to another for the same employer at the same workplace.” United States v.
Thompson, 777 F.3d 368, 379 (7th Cir. 2015); accord Kappes, 782 F.3d at 849. Second, the
condition prohibiting Perry from leaving the judicial district without permission
“improperly imposes strict liability” because it lacks a scienter requirement. Kappes, 782
F.3d at 849–50. And, third, the district judge orally pronounced a condition requiring
that Perry participate in drug and alcohol treatment but then added to the written
judgment a further directive that Perry abstain “from all alcoholic beverages and any
other substances for the purpose of intoxication.” See United States v. Johnson, 765 F.3d
702, 710–11 (7th Cir. 2014) (explaining that oral pronouncement of sentence controls over
conflicting written judgment). The total ban on alcohol use is not explained in the
presentence report or by anything the court said at sentencing. See Kappes, 782 F.3d at 852
(vacating complete ban on alcohol because sentencing court had failed to explain how
defendant’s use 3 or 4 times per week but not to point of intoxication was connected to
offense or personal history); United States v. Baker, 755 F.3d 515, 524 (7th Cir. 2014)
(vacating complete ban on alcohol despite defendant's consumption of six-pack or more
of beer twice weekly because there was no evidence of dependency or that alcohol use
had contributed to defendant’s repeated criminal conduct). That being said, we have no
reason to believe that Perry wishes to challenge these conditions, as counsel has not
identified them as potential issues and Perry has not responded to the Anders brief.
See United States v. Bryant, 754 F.3d 443, 447 (7th Cir. 2014). Moreover, even if Perry
No. 15-1897                                                                       Page 4

perceives these conditions to be problematic after he begins serving the term of
supervised release, he would be free to seek modification under 18 U.S.C. § 3583(e)(2).

      Thus, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
