United States of America v. Cornelius Burns

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 17, 2014
Decided July 17, 2014
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐1218
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CORNELIUS BURNS,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:13‐cr‐30092‐DRH‐1
David R. Herndon,
Chief Judge.
O R D E R
Cornelious Burns 1 pleaded guilty to distributing crack cocaine, see 21 U.S.C.
§ 841(a)(1), after he sold crack on three occasions to an informant. After hearing
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
1 Burns’s first name is spelled as “Cornelius” in the indictment, but, according to
the probation officer, the correct spelling is “Cornelious.”

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No. 14‐1218 Page 2
evidence about Burns’s prior criminal activity, including his convictions for murder and
attempted murder, the district court imposed an above‐guidelines sentence of 96
months’ imprisonment. Burns’s appointed lawyer has concluded that the appeal is
frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Burns
has not accepted our invitation to respond to counsel’s motion, see C IR . R. 51(b),
although he has moved for the appointment of a new lawyer. Counsel has submitted a
brief that explains the nature of the case and addresses the issues that an appeal of this
kind might be expected to involve. Because the analysis in the brief appears to be
thorough, we limit our review to the subjects that counsel discusses. See United States v.
Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.
1996).
Counsel informs us that Burns does not wish to challenge his guilty plea, so
counsel properly forgoes discussing the voluntariness of the plea or the adequacy of the
plea colloquy. 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 considers whether Burns could argue that the district court failed to
address adequately his arguments in mitigation. Counsel correctly points out that any
possible argument along these lines has been waived. Before the end of the sentencing
hearing, the judge asked Burns’s lawyer if the defendant’s arguments in mitigation had
been adequately discussed, and the attorney replied, “You did, Your Honor.” Having
passed up the chance to ask the district court to further explain its reasons for rejecting
his arguments in mitigation, Burns cannot now argue that the court’s explanation was
inadequate. See United States v. Donelli, 747 F.3d 936, 940–41 (7th Cir. 2014); United States
v. Garcia‐Segura, 717 F.3d 566, 569 (7th Cir. 2013). And, in any event, the court
responded at length to Burns’s main arguments for a lower sentence—including that he
grew up without a father figure and has not committed violent crimes since his release
from prison in 2004—and explained why it did not find these arguments persuasive.
Counsel also considers arguing that Burns’s 96‐month prison sentence is
substantively unreasonable. At sentencing the government presented testimony from
two investigators who recounted details of the murder and attempted murder
committed by Burns, as well as his gang involvement while in prison. The government
argued that an above‐guidelines sentence of 100 months was appropriate for Burns
because his Category III criminal history understates his past offenses. The
investigators’ testimony (along with the presentence report) revealed that Burns shot
the owner of a candy store three times during a 1977 robbery and threatened to kill a

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No. 14‐1218 Page 3
14‐year‐old witness. The store owner survived, and Burns was convicted of attempted
murder. But his prison sentence expired more than 15 years ago, so this conviction did
not incur any criminal history points. See U.S.S.G. § 4A1.2(e)(1), (3). Then in 1982—nine
months after he was paroled for the attempted murder—Burns shot and killed a man
while robbing him of a pound of marijuana (criminal history points were assessed for
this crime). While in prison for the murder, Burns was a leader of a prison gang and
ordered an assault on prison staff. In response, Burns’s attorney argued that the district
court should not place great weight on conduct from decades earlier. The court
considered these arguments and agreed with the government that “it’s prudent for the
Court to look at all the Defendant’s conduct,” including the attempted murder and
Burns’s leadership of a prison gang. See U.S.S.G. § 4A1.3(a)(1). The court discussed at
length the statutory sentencing factors, see 18 U.S.C. § 3553(a), reasoning that Burns’s
lengthy history of very serious crimes, the likelihood that he will commit more crimes,
the need for deterrence, and the need to protect the public justified an above‐guidelines
sentence of 96 months. Because the district court adequately explained why it was
imposing a sentence above the guidelines range of 57 to 71 months, an argument that
the court abused its discretion in imposing the sentence would be frivolous. See United
States v. Taylor, 701 F.3d 1166, 1174–75 (7th Cir. 2012); United States v. McIntyre, 531 F.3d
481, 483–84 (7th Cir. 2008).
Finally, counsel informs us that he considered whether to raise a challenge to the
district court’s application of the sentencing guidelines, but he has not identified a
possible basis for challenging the court’s calculation of the guidelines range.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
We DENY Burns’s motion for appointment of substitute counsel.

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