NONPRECEDENTIAL DISPOSITION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 November 12, 2009
Decided November 13, 2009
Before
JOHN L. COFFEY, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐2802
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 05 CR 508‐1
BYRON DUBOIS COLLINS,
Defendant‐Appellant. Amy J. St. Eve,
Judge.
O R D E R
Byron Dubois Collins pleaded guilty to robbing a bank, see 18 U.S.C. § 2113(a), and
was sentenced to 200 months in prison. Collins appeals, but his appointed counsel cannot
identify any nonfrivolous arguments to pursue and moves to withdraw. See Anders v.
California, 386 U.S. 738, 744 (1967). Collins declined an invitation to respond to counsel’s
submission, see CIR. R. 51(b), and so we confine our review to the issues outlined in
counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir.
2002).
At his first sentencing hearing, Collins requested a continuance to enable him to get
tested for prostate cancer and have family members attend sentencing. The district court
found that Collins’ medical problems did not warrant a continuance, but granted a one‐
month continuance so that his family could have more time to appear.
No. 08‐2802 Page 2
A month later, the parties reconvened for a second sentencing hearing. At the
hearing, the district court calculated Collins’ guideline imprisonment range. The court
applied a base offense level of 20, see U.S.S.G. § 2B3.1(a), with two additional levels for
taking property from a bank, see id. § 2B3.1(b)(1), three more levels for brandishing a
dangerous weapon, see id. § 2B3.1(b)(2)(E), two levels for reckless endangerment during his
high‐speed getaway, see id. § 3C1.2, and a two‐level reduction for acceptance of
responsibility, see id. § 3E1.1, for a total offense level of 25. The court noted, however, that
Collins met the criteria for a career offender, see id. § 4B1.1(a), and since the maximum
penalty for the robbery was 20 years, see 18 U.S.C. § 2113(a), the corresponding offense level
was 32, see U.S.S.G. § 4B1.1(b)(C). With a two‐level reduction for acceptance of
responsibility, see id. § 3E1.1, and a criminal history category of VI, Collins’ guideline
imprisonment range was 168 to 210 months. The court imposed a term of 200 months’
imprisonment.
In his Anders submission, counsel first considers whether Collins could challenge his
guilty plea. Collins, though, has told counsel that he does not want the plea set aside, and
so counsel appropriately omits any discussion of the plea colloquy or the voluntariness of
Collins’ plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel next assesses whether Collins could argue that the district court lacked
sufficient evidence to support a three‐level adjustment for brandishing a dangerous
weapon, see U.S.S.G. § 2B3.1(b)(2)(E). But the court did not sentence Collins based on the
guideline calculation that imposed the adjustment; because Collins was a career offender,
the court sentenced him based on the higher offense level associated with the guidelinesʹ
career‐offender provision. See U.S.S.G. § 4B1.1; United States v. Clanton, 538 F.3d 652, 660
(7th Cir. 2008). Thus any challenge to an adjustment for brandishing a dangerous weapon
would be moot.
Counsel then questions whether Collins could challenge his classification as a career
offender. Collins disputed the classification at sentencing, insisting that he did not have
two prior convictions for crimes of violence as required by U.S.S.G. § 4B1.1(a). The district
court, however, found three prior convictions for crimes of violence. The court found that
Collins had two prior convictions for previous bank robberies—both crimes of violence, see
U.S.S.G. § 4B1.2 cmt. n.1—and a conviction for resisting an officer—also a violent offense
because it presented a serious risk of physical injury (Collins, while driving a stolen car, had
dragged the officer alongside for a short distance). See U.S.S.G. § 4B1.2 cmt. n.1; United
States v. Jones, 235 F.3d 342, 346‐48 (7th Cir. 2000). As the career offender guidelines require
only two prior convictions for crimes of violence, see §§ 4B1.1, 4B1.2 cmt. n.1; United States v.
No. 08‐2802 Page 3
Templeton, 543 F.3d 378, 379 (7th Cir. 2008), any challenge to the career offender
classification would be frivolous.
Counsel next questions whether the district court erred by failing to include the two‐
level reduction for acceptance of responsibility in his total offense level. At sentencing, the
judge incorrectly pronounced that Collins’ offense level was 32 when in fact her calculations
dictated a level of 30. But the judge in fact arrived at the correct sentencing range (168 to
210 months) for someone with an offense level of 30 and a criminal history of VI. If the
judge had actually used an offense level of 32, the guideline range would have increased to
210 to 262 months. Any misstatement by the court was therefore harmless, see, e.g., United
States v. Stott, 245 F.3d 890, 915 (7th Cir. 2001).
Counsel also questions whether the district court erred in denying a continuance in
order for Collins to be tested for cancer. But the court did grant a continuance for a month
in order that Collins’ relatives could attend the sentencing hearing. Collins did not object to
the length of the continuance, never again mentioned his concern about cancer, and even
told the court that the proposed continuance “would be fine.” We will not reverse the
denial of a continuance absent an abuse of discretion and a showing of actual prejudice to a
defendant, see United States v. Vincent, 416 F.3d 593, 598 (7th Cir. 2005), and we see no
potential prejudice to Collins.
Finally, counsel notes that Collins has a history of mental health problems (namely
depression), and questions at length whether the district court erred by not accounting for
that history by departing below the guideline range. But Collins waived any appellate
challenge because he never requested a downward departure. See United States v. Fudge, 325
F.3d 910, 916 (7th Cir. 2003). Since waiver of an argument precludes any appellate review,
our analysis of this potential issue would end there. See id. But even if Collins had pressed
his departure requests, we would still see no error unless the sentence were unreasonable.
See United States v. Vaughn, 433 F.3d 917, 924 (7th Cir. 2006). Under U.S.S.G. § 5K2.13 (policy
statement), the court should not account for diminished capacity by departing below the
guideline range if the defendant’s offense involved a serious threat of violence or if the
defendant’s criminal history reflected a need to protect the public. United States v.
Zuniga‐Lazaro, 388 F.3d 308, 313 (7th Cir. 2004). The court explicitly found that Collins’
violent offense and criminal history reflected a need to protect the public, and we see no
potential error in those findings. Any argument that his sentence was unreasonable would
be without merit.
We therefore GRANT counselʹs motion to withdraw and DISMISS the appeal.