NONPRECEDENTIAL DISPOSITION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 July 20, 2011
Decided September 1, 2011
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐3030
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 09‐CR‐30004‐001‐DRH
PATRICK D. BURTON, David R. Herndon,
aka D‐BONE, Chief Judge.
Defendant‐Appellant.
O R D E R
Patrick Burton twice sold crack cocaine to an informant, and after the second
transaction, he was arrested and gave investigators a videotaped confession of his drug dealing.
Burton pled guilty to two counts of distributing crack, see
21 U.S.C. § 841(a)(1), and was
sentenced to a total of 210 months in prison. He filed a notice of appeal, but his appointed
lawyer asserts that the appeal is frivolous and seeks to withdraw under Anders v. California,
386 U.S. 738, 744 (1967). Burton did not respond to our invitation to address counsel’s
submission. See Cir. R. 51(b). We confine our review to the potential issues identified in
counsel’s facially adequate submission. See United States v. Schuh,
289 F.3d 968, 973‐74 (7th Cir.
2002).
No. 10‐3030 Page 2
Burton, who told the district court that he suffers from a mental impairment, requested
a psychiatric evaluation shortly after being indicted. The court granted the motion, and Burton
was examined by two psychologists. Both concluded that he was competent to stand trial, but
the psychologist retained by Burton opined that he did not understand the Miranda warnings
given to him before he confessed. Burton then moved to suppress that confession.
The district court conducted a hearing on Burton’s competence to stand trial and his
motion to suppress. First the court found, based on the psychological reports and Burton’s
testimony at the hearing, that he was competent to stand trial. The judge surmised that Burton
had tried to mislead the court by pretending not to understand the charges or proceedings.
After watching a video recording of interviewers giving Miranda warnings to Burton, the court
concluded that he knowingly and voluntarily waived his rights to remain silent and to have
a lawyer present during questioning. Thus the court denied the motion to suppress. A few
days later Burton pled guilty without a plea agreement.
At sentencing the district court set a base offense level of 32 after attributing 396 grams
of crack to Burton. See U.S.S.G. § 2D1.1(c)(4) (2009). The court then applied a two‐level
upward adjustment for obstruction of justice, § 3C1.1, after concluding that Burton had lied at
his competence hearing. The court added two more levels after finding that Burton had
possessed a gun, see § 2D1.1(b)(1), and subtracted two levels for acceptance of responsibility,
see § 3E1.1(a). Burton’s total offense level of 34 and criminal history category of IV yielded a
guidelines imprisonment range of 210 to 262 months, and the court selected the low end.
Counsel first questions whether Burton could argue that the district court erred in
finding him competent and denying his motion to suppress, but concludes that both arguments
would be frivolous. We agree. By pleading guilty unconditionally, Burton waived any
objection to nonjurisdictional defects. See United States v. Phillips,
645 F.3d 859, 862 (7th Cir.
2011); United States v. Kingcade,
562 F.3d 794, 797 (7th Cir. 2009); United States v. Rogers,
387 F.3d
925, 932 (7th Cir. 2004); Allen v. Mullin,
368 F.3d 1220, 1234 (10th Cir. 2004). Moreover, Burton
has informed counsel that he does not want his guilty pleas set aside; questioning Burton’s
competence would challenge the adequacy of the plea colloquy and the voluntariness of his
guilty pleas, so we do not consider those issues. See United States v. Knox,
287 F.3d 667, 671‐72
(7th Cir. 2002).
Burton was sentenced shortly before the effective date of the 2010 version of the
guidelines, and counsel next questions whether he could argue that it was error to use the 2009
version because the 2010 guidelines eliminate the criminal history point he received under
§ 4A1.1(e) for committing his two crack offenses less than two years after he was released from
another sentence. But district courts are required to use the guidelines in force on the date of
sentencing,
18 U.S.C. § 3742(g)(1); United States v. Tanner,
544 F.3d 793, 797 (7th Cir. 2008). In
addition, deviating from that rule (or taking the advice of the not‐yet‐effective guidelines, see
No. 10‐3030 Page 3
generally United States v. Demaree,
459 F.3d 791 (7th Cir. 2006) (sentencing court may, without
violating ex post facto clause of Constitution, take advice from guidelines that took effect after
crime was committed), would not have helped Burton anyway. With one less point – seven
instead of eight – Burton’s criminal history category, IV, would remain the same. And worse
for him, as the sentencing court noted, applying the 2010 guidelines would have increased
Burton’s total offense level and imprisonment range. His base offense level would have
remained at 32, see § 2D1.1(c)(4), but Burton would have been subject to a new amendment that
added two levels for using or threatening violence, which Burton had done as part of his
relevant conduct, see § 2D1.1(b)(2).
Counsel also raises the possibility of arguing that Burton is entitled to a reduced
sentence under the Fair Sentencing Act of 2010, Pub. L. No. 111‐220,
124 Stat. 2372. We have
held that the FSA does not apply to Burton because the statute is not retroactive, see United
States v. Bell,
624 F.3d 803, 814‐15 (7th Cir. 2010), and because Burton’s crimes preceded its
enactment, see United States v. Fisher,
635 F.3d 336, 340 (7th Cir. 2011), reh’g & reh’g en banc
denied,
646 F.3d 429 (7th Cir. 2011); see also United States v. Holcomb, No. 11‐1558 (7th Cir. July 7,
2011) (applying holding from Fisher that FSA does not apply retroactively), reh’g en banc denied,
slip op. at 1 (7th Cir. Aug. 24, 2011) (recognizing circuit split but declining by 5‐to‐5 vote to hear
en banc issue of retroactivity of FSA). The circuit split on the issue shows that the issue in the
abstract might be the subject of a legitimate claim on appeal, even if our court might not be
inclined to return to the issue yet again. The more fundamental problem here is that even if the
FSA applied to Burton, he would not be better off. He no longer would have been bound by
the statutory minimum of ten years in prison, see
21 U.S.C. § 841(b)(1)(B)(iii) (2009), but his
sentence was not driven by the statutory mandatory minimum. He received a guideline
sentence well above the mandatory minimum. He still would have been subject to the 2009
guidelines range of 210 to 262 months. See
18 U.S.C. § 3742(g)(1); Tanner,
544 F.3d at 797. Even
under the Sentencing Commission’s proposed permanent guideline amendment implementing
the Fair Sentencing Act, Burton’s base offense level would remain 32, and thus he would not
be able to benefit under
18 U.S.C. § 3582(c)(2).
Finally, counsel correctly concludes that any challenge to the length of Burton’s overall
prison term would be frivolous. Burton was sentenced within his guidelines range, and counsel
has not identified any basis to challenge the presumption of reasonableness that applies.
See Rita v. United States,
551 U.S. 338, 341 (2007); United States v. Aslan,
644 F.3d 526, 531‐32 (7th
Cir. 2011).
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.
