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,

Plaintiff‐Appellee,

v.

TERRELL M. BURCH

Defendant‐Appellant.

Appeal from the United States District

Court for the Southern District of Illinois.

No. 97‐CR‐30089‐05‐WDS

William D. Stiehl,

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

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐1519 Page 2

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This is the second time Burch’s supervised release has been revoked.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
No. 08‐1519 Page 3

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.