                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 13-1902
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                 v.

KENDALE M. TATUM,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
                    Eastern District of Wisconsin.
          No. 2:12-cr-0019-JPS-3 — J.P. Stadtmueller, Judge.
                     ____________________

      SUBMITTED JULY 17, 2014 — DECIDED JULY 29, 2014
                     ____________________

   Before POSNER, KANNE, and TINDER, Circuit Judges.
    POSNER, Circuit Judge. The defendant was indicted for us-
ing the telephone to facilitate his possession of cocaine with
intent to distribute. 21 U.S.C. § 843(b). He pleaded guilty and
was sentenced to 24 months of probation. The sentencing
judge imposed 18 conditions of probation and in doing so
told the defendant: “we’ll see what the next two years are
going to bring in terms of your ability to conform your con-
duct to the requirements of the law, because if you don’t, the
2                                                 No. 13-1902

24 months of probation is going to be 24 months in prison.”
What the judge meant was that if the defendant violated any
of the conditions of probation, he would be punished by be-
ing imprisoned for 24 months.
    Only two months after the sentencing, the probation ser-
vice filed a petition to revoke the defendant’s probation be-
cause of several violations of the conditions. The violations
alleged included driving without a valid driver’s license,
failing to attend an outpatient drug treatment program, and
thrice submitting urine samples that tested positive for co-
caine. At his revocation hearing the defendant admitted hav-
ing committed the violations alleged. The judge was angry
and reminded him that he had “made it very clear back on
[the date of sentencing] that if you weren’t going to follow
the precepts of [the probation service], you’re going to jail
for two years; and that’s exactly what is going to happen to-
day because the Court is keeping its word when you chose
not to keep the word that you promised to keep. It’s plainly
simple. … And so on the basis of the comments that the
Court made at the time of sentencing, together with the con-
tinued violations, the Court on the state of the record before
me today is constrained, as much as I hate to do it, to impose
a sentence of 24 months’ custody of the Bureau of Prisons.”
    Our defendant’s lawyer, stating that he can find no non-
frivolous ground for an appeal from the 24-month sentence,
has filed an Anders brief, to which the defendant has not re-
sponded though given an opportunity to do so.
   Although the defendant’s guidelines prison range for his
violations of the conditions of probation was only 7 to 13
months, U.S.S.G. § 7B1.4(a), the statutory maximum (for the
crime of which he had been convicted, which became the
No. 13-1902                                                  3

statutory maximum sentence that the judge could impose
upon revoking his probation, 18 U.S.C. §§ 3565(a)(2), 3551)
was four years. 21 U.S.C. § 843(d)(1). So the 24-month prison
sentence was lawful. And in light of the number of the de-
fendant’s violations of probation, and that they began so
soon (probably immediately) after he was sentenced, neither
the judge’s decision to revoke probation nor the sentence he
imposed having revoked it could be said to be unreasonable.
    One feature of the judge’s sentence, conspicuous in the
portions we quoted, troubles us, however. That is that the
judge seems to have decided when he sentenced the defend-
ant to probation what the penalty would be should he later
revoke probation: “if you weren’t going to follow the pre-
cepts of [the probation service], you’re going to jail for two
years; and that’s exactly what is going to happen today be-
cause the Court is keeping its word.” A judge can’t be al-
lowed, when imposing conditions of probation (or of super-
vised release), to commit himself to a specified penalty
should there be a violation or violations. The number and
gravity of any violations that are committed would be ger-
mane to any rational judgment on whether to revoke proba-
tion and, if it is revoked, what punishment to impose for the
violations. Any significant changes in the defendant’s situa-
tion, such as mental deterioration, would have to be consid-
ered as well. We don’t think a judge can be permitted to dis-
able himself from considering such factors by committing
himself in advance to a specified sanction for any violation
of probation, committed at any time, under any circum-
stances. That’s too much like sentence first, trial afterwards.
Although there are cases in which a sentencing judge has no
discretion because the legislature has prescribed the sen-
4                                                  No. 13-1902

tence for the offense of conviction, that is not true of revoca-
tion of probation.
    We must, it is true, be careful when a judge has made a
spontaneous sentencing statement not to impose an unrealis-
tically literal interpretation on his words. The judge in this
case had treated the defendant leniently in sentencing him to
24 months of probation for a crime that carries a maximum
sentence of four years. The defendant thumbed his nose at
the lenient sentence by forthwith flagrantly violating condi-
tions of probation, especially regarding use of illegal drugs,
suggesting a likelihood of his re-engaging in the distribution
of such drugs. It was not just “the comments that the Court
made at the time of sentencing” that moved the judge to im-
pose the sentence he did but those comments “together with
the continued violations.” We have no reason to think it like-
ly, therefore, that if reminded that it is improper for a sen-
tencing judge to commit himself to the imposition of a spe-
cific sentence should he revoke the defendant’s probation (or
his supervised release, when a prison sentence is imposed
rather than probation) the district judge would reduce the
24-month sentence that he imposed on the defendant. But
we can grant an Anders motion, and thus both allow the ap-
pellant’s lawyer to withdraw from the case and dismiss the
appeal, only if there is no nonfrivolous ground of appeal.
United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997); United
States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996). And we
cannot say that an argument that a sentence for violating
probation is improper if it is fixed at the time the defendant
is sentenced to probation is a frivolous argument. Nor can
we be certain that a judge’s apparent commitment in ad-
vance to impose a specific sentence for violating probation
has no effect on the length of the sentence that he imposes.
No. 13-1902                                                   5

    In disapproving predetermination of the punishment for
violating conditions of probation or supervised release we
acknowledge tension with the Fifth Circuit’s decision in
United States v. Reyna, 358 F.3d 344 (5th Cir. 2004) (en banc).
In sentencing defendant Reyna the district judge had offered
him a choice between immediately serving 6 months in pris-
on or being imprisoned for 12 months but with the execution
of that sentence suspended for three years, during which pe-
riod the defendant would be subject to conditions of super-
vised release prescribed by the court. Reyna chose the latter
option. But the district judge “coupled its generosity with a
stern warning: … ‘I will sentence you to 12 months in jail. I
will suspend the execution of those 12 months, which simply
means that I will allow you to surrender voluntarily. But the
moment you spit on the sidewalk, I don't care whether you
get a traffic ticket, you are gone for 12 months. You can do
that or I will give you six months today and you will get it
over with. Which one do you want?’ After Reyna chose the
12-month option, the court warned him again: ‘I am talking
about anything. You are gone. You are on your way for 12
months. It is just a matter of me setting a date for voluntary
surrender.’” 358 F.3d at 346.
    When Reyna soon violated the terms of supervised re-
lease, the district court “enforced its agreement with Reyna
and did exactly what it had promised Reyna it would do, it
sentenced him to 12 months imprisonment.” Id. at 353.
   Nowhere did the Fifth Circuit intimate any criticism of
the “agreement.” But so far as appears, the defendant did
not criticize it either. The only ground of appeal discussed in
the Fifth Circuit’s opinion is a violation (held by the court to
be harmless) of the defendant’s right of allocution—the
6                                                No. 13-1902

judge had given him no chance to object to the 12-month
sentence during the sentencing hearing. Reyna thus is not
authority that it is proper for a judge to treat a warning of
consequences of violating probation as creating a contract
requiring him to impose those consequences should there be
a violation.
    The Anders motion is therefore denied and the parties are
instructed to brief the merits of the appeal.
