NONPRECEDENTIAL DISPOSITION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 10, 2020
Decided November 19, 2020
Before
DIANE S. SYKES, Chief Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 20-1367
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:18CR00387
COLET BRUNER, James P. Hanlon,
Defendant-Appellant. Judge.
ORDER
Colet Bruner, who was convicted in 2016 of the crime of strangulation, pleaded
guilty two years later to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). He
received a sentence of 72 months in prison followed by 3 years of supervised
release. Bruner appeals from that sentence, but counsel asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967).
Counsel’s brief explains the nature of the case and potential issues an appeal of this
kind would be expected to involve. Because his analysis appears thorough and Bruner
No. 20-1367 Page 2
has not responded to the motion, see 7TH CIR. R. 51(b), we limit our review to the issues
counsel discusses, see United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). Counsel
advised Bruner of the risks and benefits of challenging his plea, and Bruner stated that
he does not wish to do so; counsel’s brief therefore properly omitted discussion of the
voluntariness of Bruner’s plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel first discusses whether Bruner could reasonably argue that the judge
procedurally erred in determining his Sentencing Guidelines range and correctly
concludes that he could not. See United States v. Barnes, 660 F.3d 1000, 1008 (7th Cir.
2011). After Bruner reviewed the presentence investigation report with his lawyer, he
did not object to the calculation of an offense level 17, a criminal-history category VI,
and a recommended Guidelines range of 51 to 63 months in prison and 1 to 3 years of
supervised release. Because he did not object, our review of the court’s adoption of that
range would be for plain error. United States v. Jenkins, 772 F.3d 1092, 1096 (7th Cir.
2014).
We agree with counsel that Bruner could not show such error. Following the
PSR, the judge correctly excluded Bruner’s juvenile convictions, U.S.S.G. § 4A1.2(c)(2);
rightly used a base offense level of 20 because his prior felony for strangulation was a
crime of violence, id. § 2K2.1(a)(4)(A); and properly reduced it by three levels to 17 for
accepting responsibility, id. § 3E1.1(a)–(b). Likewise, the judge properly adopted the
PSR’s correct calculation of 17 criminal-history points. Id. § 4A1.1. This history included
illegal drug and gun possession, driving while intoxicated, pandering prostitution, and
strangulation—placing him in category VI. (A plain error of five points would be
needed to move Bruner to the next lower category, see id. Sentencing Table, and counsel
correctly sees no errors.)
We further agree with counsel that Bruner could not plausibly argue that the
prison term of 11 months over the top of the Guidelines range was substantively
unreasonable. See Barnes, 660 F.3d at 1008. We will affirm an above-guidelines sentence
as long as the judge provides an adequate statement of the reasons for the sentence.
United States v. Gill, 824 F.3d 653, 665 (7th Cir. 2016); United States v. Fogle, 825 F.3d 354,
359 (7th Cir. 2016). The judge did so here. He reasoned that Bruner’s argument about
aging out of criminality was outweighed and refuted by his “off the chart” criminal
history: his crime of strangulation was recent, and he repeatedly committed drug,
drinking, gun, and sex offenses. From this history the court permissibly concluded that
an upward variance from the Guidelines range was necessary to reflect the seriousness
No. 20-1367 Page 3
of his new crime, protect the public, deter further criminal conduct, and promote
respect for the law. 18 U.S.C. § 3553(a)(2). Furthermore, although the court is not
obligated to explain each sentencing factor under § 3553(a) “in checklist fashion,” the
judge offered to do so here, and Bruner declined the offer. See United States v. Shannon,
518 F.3d 494, 496 (7th Cir. 2008).
Counsel next considers whether Bruner may challenge the term and conditions
of his three-year supervised release and correctly determines that any argument would
be pointless. First, the three-year term is authorized by statute. 18 U.S.C. § 3583(b)(2).
Second, that term is also within the Guidelines range, U.S.S.G. § 5D1.2(a)(2), so it is
presumptively reasonable, see United States v. Jones, 774 F.3d 399, 404 (7th Cir. 2014).
Neither counsel nor we discern any basis for rebutting that presumption. Finally,
Bruner had the chance to object to any of the conditions of release but did not, so he
relinquished his right to appeal any claimed error. United States v. Flores, 929 F.3d 443,
449–50 (7th Cir. 2019).
Finally, counsel considers whether Bruner might plausibly challenge the court’s
imposition of a $500 fine but correctly concludes that the challenge would be frivolous.
Even though the PSR found Bruner to be indigent, fining him would be error only if
Bruner could show that he “is not likely to become able to pay any fine.” U.S.S.G.
§ 5E1.2(a) (emphasis added); see United States v. Lee, 950 F.3d 439, 444 (7th Cir. 2020).
Bruner could not make that showing. The $500 fine is nominal in relation to the
statutory maximum of $250,000 and the Guidelines minimum of $10,000. Moreover, we
have upheld the imposition of “limited fine[s]” payable from prison earnings.
United States v. Riley, 493 F.3d 803, 811 (7th Cir. 2007). The judge described the fine as
“an incentive for [Bruner] to participate in prison industries,” a comment that accords
with Tapia v. United States, 564 U.S. 319, 334 (2011), which permits a court to “discuss[]
the opportunities for rehabilitation” during an otherwise proper prison term.
We GRANT the motion to withdraw and DISMISS the appeal as frivolous.