NONPRECEDENTIAL DISPOSITION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 March 18, 2022
Decided March 21, 2022
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-2077
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 14-20072-001
TROY D. BURKE, Sue E. Myerscough,
Defendant-Appellant. Judge.
ORDER
While Troy Burke was serving a sentence for bank robbery, he was granted
furlough from federal prison and directed to report to a substance abuse rehabilitation
center. But Burke never reported as required; he later pleaded guilty to escape in
violation of 18 U.S.C. § 751(a), and was sentenced to 30 months’ imprisonment and 36
months’ supervised release. The district court later revoked his supervised release three
No. 21-2077 Page 2
times for violations of the conditions, and he filed this appeal after the third revocation.
But his appointed lawyer asserts that the appeal is frivolous and seeks to withdraw
under Anders v. California, 386 U.S. 738 (1967).
Burke does not have an unqualified constitutional right to counsel when
appealing a revocation order, see Gagnon v. Scarpelli, 411 U.S. 778, 789–91 (1983), so the
Anders safeguards need not govern our review. Nonetheless, our practice is to apply
them. See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). We notified Burke of
counsel’s motion, see CIR. R. 51(b), and he did not respond. Because counsel’s brief
explains the nature of the case and addresses potential issues that an appeal would be
expected to involve, and the analysis appears thorough, we focus our review on the
subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
The first time the district court revoked Burke’s supervised release, it sentenced
him to 16.5 months’ imprisonment and 19 months’ supervised release. The second time,
it sentenced him to 24 months’ imprisonment and 12 months’ supervised release—
which Burke served for a month before being charged with violations. The third time
the probation office petitioned for revocation, Burke waived his right to a contested
revocation hearing and admitted to violations including domestic battery, criminal
damage to property, possession and use of marijuana and cocaine, and failure to
participate in substance abuse treatment and testing. The district court revoked
supervised release and sentenced him to 18 months’ imprisonment with no further
supervised release.
Counsel does not tell us—as she should—whether Burke wants to challenge the
revocation order or the admissions upon which it was based. See United States v.
Wheeler, 814 F.3d 856, 857 (7th Cir. 2016); United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012). But nothing in the revocation hearing transcript allows doubt that Burke
knowingly and voluntarily waived his right to contest the violations and admitted the
charged conduct. He confirmed that he understood the charges and the possible
penalty, that he was waiving his right to a revocation hearing and admitting the
violations of his own free will, and that he had discussed this choice with his attorney
and was satisfied with his representation. See FED. R. CRIM. P. 32.1(b)(2).
Counsel first considers whether Burke could challenge his reimprisonment
because the district court lacked the authority to impose additional supervised release
after the previous revocation. She contends that, under 18 U.S.C. § 3583(h), additional
supervised release for any revocation is the maximum term for the original offense—
here, 36 months, 18 U.S.C. §§ 751(a), 3559(a)(4), 3583(b)(2)—minus the total
No. 21-2077 Page 3
reimprisonment for all subsequent revocations. Because the district court sentenced him
to a total of 40.5 months’ reimprisonment (16.5 months plus 24 months) as of the second
revocation, it could not—but nevertheless did—impose more supervised release.
Therefore, counsel considers arguing that Burke’s sentence is invalid because he should
not have been subject to any conditions when he committed the present violations.
Counsel appropriately concludes, however, that this argument would be
frivolous because it is too late to raise the issue in this appeal. Even if we assume that
the district court might have erred—and we do not mean to imply that it did—that
judgment was nevertheless final and enforceable because Burke did not appeal it within
14 days. See United States v. McClain, 16 F.4th 487, 491 (7th Cir. 2021). Burke was
therefore required to adhere to the supervised release conditions and could be found
guilty of, and sentenced for, violating them. See id.
Counsel next considers whether Burke could challenge the length of his latest
prison sentence and correctly concludes that he could not. The 18-month sentence is
below the two-year statutory-maximum for revocation following a conviction for the
Class D felony of escape, 18 U.S.C. § 3583(e)(3), as well as the range of imprisonment
called for by the policy statements in Chapter Seven of the Sentencing Guidelines.
Burke’s drug offenses were Grade A violations, U.S.S.G. § 7B1.1, and his original
Criminal History Category is V, U.S.S.G. § 7B1.4, yielding a range of 30 to 37 months
that is replaced by the lower statutory maximum by operation of U.S.S.G. § 7B1.1(b).
Counsel identifies no other potential procedural errors with the sentence.
As for substantive reasonableness, counsel notes that the below-range sentence is
presumed reasonable on appeal. United States v. Bonk, 967 F.3d 643, 650 (7th Cir. 2020).
Nothing in the record rebuts that presumption. Burke argued for a lower sentence of
time served based on the alleged error in his previous sentence, but the district court
was required only to consider that argument, not to accept it. See United States v. Jackson,
860 F.3d 438, 449 (7th Cir. 2017). And the court explained the chosen sentence with
reference to the factors under 18 U.S.C. § 3553(a) when it discussed the circumstances of
Burke’s offenses and the need to promote respect for the law (including his “extensive
criminal history and lack of respect for the law, the Court and the probation office”), his
history and characteristics (such as a “lengthy history of alcohol and illegal substance
abuse”), the need to deter further crimes and protect the public, and the beneficial effect
of substance abuse treatment for Burke. See Bonk, 967 F.3d at 651.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.