                        NONPRECEDENTIAL DISPOSITION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 May 11, 2020
                                 Decided May 12, 2020

                                         Before

                       DIANE P. WOOD, Chief Judge

                       MICHAEL B. BRENNAN, Circuit Judge

                       MICHAEL Y. SCUDDER, Circuit Judge


No. 19‐2254

UNITED STATES OF AMERICA,                         Appeal from the United States District
     Plaintiff‐Appellee,                          Court for the Northern District of Indiana,
                                                  Hammond Division.

      v.                                          No. 2:17CR1‐001

TRAVIS J. BARRETT,                                Joseph S. Van Bokkelen,
     Defendant‐Appellant.                         Judge.

                                       ORDER

       Travis Barrett pleaded guilty to possessing child pornography in violation of
18 U.S.C. § 2252(a)(4)(B) and was sentenced to 97 months’ imprisonment and ten years’
supervised release. Although his plea agreement contained a broad appeal waiver,
Barrett filed a notice of appeal. His appointed attorney asserts the appeal is frivolous
and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Barrett has
responded to counsel’s motion. See CIR. R. 51(b).

        Counsel considers whether Barrett could challenge his sentence but concludes
that any challenge would be foreclosed by the appeal waiver. In it, Barrett waived the
right to appeal all components of his sentence “on any ground” except ineffective
No. 19‐2254                                                                          Page 2

assistance of counsel. Barrett urges that his waiver should be overlooked because some
of his supervised release conditions are unconstitutionally vague, overbroad, and
substantively unreasonable. For instance, Barrett points to Condition 31, which
prohibits him from viewing or possessing “any material depicting ‘sexually explicit
conduct,’ as defined in 18 U.S.C. § 2256(2).” Barrett concedes he did not object to this
condition at sentencing, but he argues it impinges on his First Amendment rights.

       While we agree with counsel’s analysis on Barrett’s other arguments, we
disagree on the specific issue of Condition 31. It is true that “[a]ppeal waivers in plea
agreements are typically enforceable.” United States v. Adkins, 743 F.3d 176, 192 (7th Cir.
2014). And by not objecting to a supervised release condition at sentencing a defendant
generally waives his right to challenge that condition on appeal. See United States v.
Groce, 953 F.3d 487, 489 (7th Cir. 2020). But in the “’rare and limited instance’ … we may
choose to overlook a waiver because the challenged condition concerns activity
protected by the First Amendment.” United States v. Anderson, 948 F.3d 910, 912 (7th Cir.
2020) (quoting United States v. Flores, 929 F.3d 443, 450 (7th Cir. 2019)).

        There is a nonfrivolous question about whether Barrett’s challenge to condition
31 is such a rare instance. This limited waiver exception is premised on our decision in
United States v. Adkins, in which we relieved a defendant of waiver because a vague
condition of supervised release would have unconstitutionally burdened his First
Amendment rights. 743 F.3d at 193. Adkins had both agreed to a broad appeal waiver
and failed to object to the vague condition at sentencing, id. at 191, but we discussed the
reasons why the constitutional concerns raised by the challenged condition overcame
the written waiver only, without addressing the waiver Adkins incurred by failing to
object at sentencing, id. at 192–93. Since Adkins, we have decided a series of cases that
have clarified when a defendant who does not challenge a supervised release condition
at sentencing “will be stuck with that decision.” Anderson, 948 F.3d at 911–12 (listing
cases); see also Groce, 953 F.3d at 489; Flores, 929 F.3d at 447–50. This appeal presents an
opportunity to consider the legacy of Adkins in the wake of those decisions.

       We agree with Barrett that, if his challenge to Condition 31 is reviewable, it
would not be frivolous. If we overlooked waiver in Barrett’s appeal, our review would
be for plain error. See Flores, 929 F.3d at 451. And in United States v. Shannon, we found
plain error where the district court did not adequately justify a vague condition
involving protected speech that was nearly identical to Condition 31. 743 F.3d 496, 498–
503 (7th Cir. 2014) (condition barred defendant from “possess[ing] any material
containing `sexually explicit conduct’ as defined in 18 U.S.C. § 2256(2), including
No. 19‐2254                                                                           Page 3

pictures, photographs, books, writings, drawings, videos, video games and child
pornography as defined in 18 U.S.C. § 2256(8)” was vague because it was unclear
whether it applied to visual depictions only). Barrett could argue that, as in Shannon, the
district court here did not provide sufficient reasons for imposing Condition 31.

       We express no conclusion on the ultimate merits of this potential challenge. We
decide only that this appeal of Condition 31 is not frivolous, so Barrett is entitled to the
benefit of briefing by counsel. See, e.g., United States v. Eskridge, 445 F.3d 930, 931–32
(7th Cir. 2006). Counsel’s motion to withdraw is therefore DENIED, and the parties are
ORDERED to brief whether Barrett procedurally waived his challenge to Condition 31
and whether that condition violates his constitutional rights. Briefing will proceed as
follows:

       1. The appellant’s brief and required short appendix are due by June 11, 2020.

       2. The appellee’s brief is due by July 13, 2020.

       3. The appellant’s reply brief, if any, is due by August 3, 2020.
