NONPRECEDENTIAL DISPOSITION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 22, 2008
Decided December 29, 2008
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐1519
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 97‐CR‐30089‐05‐WDS
TERRELL M. BURCH William D. Stiehl,
Defendant‐Appellant. Judge.
O R D E R
After Terrell Burch violated the conditions of his supervised release, the district court
ordered that he be reimprisoned for 30 months. Burch filed a notice of appeal, but his
appointed attorney has moved to withdraw because he cannot discern a nonfrivolous basis
for appeal. See Anders v. California, 386 U.S. 738 (1967). Burch has accepted our invitation to
comment on counsel’s motion, see CIR. R. 51(b), and so we confine our review to the
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potential issues identified in counsel’s facially adequate brief and in Burch’s response, see
United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
This is the second time Burch’s supervised release has been revoked. He was
initially convicted in 1998 of conspiracy to distribute crack cocaine, see 21 U.S.C. §§ 846,
841(a)(1), and sentenced to 156 months’ imprisonment and 5 years’ supervised release. The
court later reduced the prison term to 104 months after Burch cooperated with the
authorities, see FED. R. CRIM. P. 35(b), and in 2005 he was released from prison. Not long
after, however, the probation officer petitioned to revoke his supervised release because
Burch had committed battery, tested positive for controlled substances three times, resisted
a police officer, failed to make payments toward his fine, refused treatment for substance
abuse, failed to verify his employment, manipulated the results of a urinalysis, committed
traffic offenses and tried unsuccessfully to flee from police, and failed to report his arrest to
his probation officer. The district court, finding that Burch had violated the conditions of
his supervised release, revoked the term and reimprisoned him for 18 months. The court
also imposed a new term of 24 months’ supervised release, with the first six months to be
spent in a community corrections center.
Burch finished the prison term in 2007. Within months his probation officer had
once again petitioned to revoke Burch’s supervised release, this time alleging that he tested
positive for morphine, was told to leave the community corrections center before he
completed the requisite six months, and failed to report to his probation officer. At a
revocation hearing in February 2008, Burch admitted all of these charges. The district court
found that Burch had possessed the morphine he used, which made revocation and further
imprisonment mandatory. See 18 U.S.C. § 3583(g). The court revoked Burch’s supervised
release and ordered him to serve another 30 months’ imprisonment.
Counsel contemplates whether Burch could challenge the reasonableness of his term
of reimprisonment. We will uphold a term of reimprisonment imposed upon revocation of
supervised release unless it is “plainly unreasonable,” a standard reflecting the “narrowest
judicial review of judgments we know.” United States v. Kizeart, 505 F.3d 672, 675 (7th Cir.
2007). So long as the district court considered the applicable policy statements, see U.S.S.G.
ch. 7, pt. B, and the factors set out in 18 U.S.C. § 3553(a), see United States v. Salinas, 365 F.3d
582, 588‐89 (7th Cir. 2004), the court’s choice of an appropriate period of reimprisonment
will be sustained. In this case the court correctly found that Burch’s Grade B violations, see
U.S.S.G. § 7B1.1(a)(2), and his criminal history category of IV yielded a reimprisonment
range of 12 to 18 months under the applicable policy statements, see U.S.S.G. § 7B1.4. The
court, consulting the factors set out in § 3553(a) and acknowledging the sentencing range,
imposed a term of reimprisonment above that range because of Burch’s defiance of lesser
sanctions and continued use of drugs. Cf. Salinas, 365 F.3d at 589 (finding 24 month term of
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reimprisonment, 15 months higher than sentencing range, not plainly unreasonable). Any
contention that the term is plainly unreasonable would be frivolous.
For the above reasons, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.