United States v. Ricardo Burgos ( 2018 )

NONPRECEDENTIAL DISPOSITION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 December 20, 2018
Decided December 20, 2018
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-1284
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v. No. 16-CR-165
RICARDO BURGOS, Ronald A. Guzmán,
Defendant-Appellant. Judge.
ORDER
Over a period of months in 2015, Ricardo Burgos sold small amounts of drugs to
undercover officers six times, handing over a total of 4.02 grams of crack and 1.4 grams
of heroin. A few weeks after the last of these transactions, Burgos recorded a music
video at a hotel in Deerfield, Illinois in which he brandished a .45 caliber pistol at the
camera—a pistol that he later admitted was stolen and that his past felony convictions
barred him from possessing. Burgos was charged with and pleaded guilty to one count
of distribution of a controlled substance and one count of unlawfully possessing a
firearm. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1). After receiving concurrent 188-
month and 120-month sentences, he filed a notice of appeal. His appointed counsel
No. 18-1284 Page 2
asserts that the appeal is frivolous and moves to withdraw, see Anders v. California, 386
U.S. 738 (1967); Burgos opposes the motion, see CIR. R. 51(b). We grant counsel’s motion
and dismiss the appeal.
Counsel’s brief explains the nature of the case and addresses potential issues that
this kind of appeal might be expected to involve. Because counsel’s analysis appears
thorough, we limit our review to the issues counsel discusses as well as those Burgos
wishes to raise. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). Burgos does not
want to challenge his guilty plea, so counsel appropriately avoids discussing whether
the plea was knowing and voluntary. See United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012).
To begin with, counsel notes that Burgos’s sentence was enhanced due to his
career offender status, see U.S.S.G. § 4B1.1, and questions whether this classification is
contestable. Counsel considers and rejects several arguments including whether the
proper version of the guidelines was used and whether his underlying offenses were in
fact crimes of violence. We agree with counsel’s assessment that there are no non-
frivolous arguments to be made about Burgos’s career-offender status.
Further, it would be frivolous to challenge the enhancement because, as counsel
notes, Burgos “repeatedly agreed” that he is a career offender. In his sentencing
memorandum, Burgos related that he has two prior felony convictions for crimes of
violence and admitted that he is a career offender. During the sentencing hearing, the
government stated—and Burgos explicitly agreed—that he was a career offender with
an offense level of 29, a criminal history category of VI, and that the proper guidelines
range was 151 to 188 months’ imprisonment. And at one point, the judge questioned
Burgos about a notation in his sentencing memorandum that his criminal history
category was IV, not VI, as career offender status requires. Burgos responded: “Judge,
it’s just a typo. It should be six.” These repeated affirmations of his career-offender
status are inconsistent with a negligent or accidental failure to object. Forfeiture
happens through accident or negligence; waiver happens intentionally. United States v.
Olano, 507 U.S. 725, 733 (1993). See also United States v. Fuentes, 858 F.3d 1119, 1121
(7th Cir. 2017) (repeated affirmations in memoranda and at sentencing could not “be
considered negligent oversights that might qualify as forfeiture”).
Counsel also considers whether Burgos’s sentence could colorably be challenged
on reasonableness grounds but correctly determines that this, too, would be frivolous.
Burgos’s 188-month sentence is within the guidelines range of 151 to 188 months,
No. 18-1284 Page 3
making it presumptively reasonable on appeal. United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). Nothing in the record could rebut the presumption: the district court
considered Burgos’s arguments in mitigation, walked through the § 3553(a) factors, and
fully explained its reasoning.
Likewise, counsel correctly concludes that an attack on Burgos’s conditions of
supervised release would inevitably fail. Burgos forfeited this argument; he
communicated to the judge that he and his attorney had reviewed the conditions
together prior to the hearing, the conditions he reviewed were the same he received at
sentencing, and Burgos told the judge he had no objections. See United States v. Lewis,
823 F.3d 1075, 1083 (7th Cir. 2016). And there would be no plain error because the court
has discretion to impose supervised-release conditions and need not provide a separate
explanation for them. United States v. Bloch, 825 F.3d 862, 869 (7th Cir. 2016); United
States v. Kappes, 782 F.3d 828, 837 (7th Cir. 2015).
In his Rule 51(b) response, Burgos presents the additional argument that the
judge improperly attributed an earlier drive-by shooting to him and relied upon this
inaccurate information during sentencing. See United States v. Tucker, 404 U.S. 443, 447
(1972). But the judge did no such thing: after discussing the drive-by shooting, the judge
explicitly said, “But I don’t rely on that in the sentencing. It’s not necessary.” Because
Burgos could not demonstrate the necessary reliance, see United States v. Walton, 907
F.3d 548, 552 (7th Cir. 2018), this argument would be frivolous.
We GRANT the motion to withdraw and DISMISS the appeal.