United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 20, 2018

Decided December 20, 2018

Before

JOEL M. FLAUM, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 18-1284

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICARDO BURGOS,

Defendant-Appellant.

Appeal from the United States District 

Court for the Northern District of 

Illinois, Eastern Division.

No. 16-CR-165

Ronald A. Guzmán,

Judge.

O R D E R

Over a period of months in 2015, Ricardo Burgos sold small amounts of drugs to 

undercover officers six times, handing over a total of 4.02 grams of crack and 1.4 grams 

of heroin. A few weeks after the last of these transactions, Burgos recorded a music 

video at a hotel in Deerfield, Illinois in which he brandished a .45 caliber pistol at the 

camera—a pistol that he later admitted was stolen and that his past felony convictions 

barred him from possessing. Burgos was charged with and pleaded guilty to one count 

of distribution of a controlled substance and one count of unlawfully possessing a 

firearm. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1). After receiving concurrent 188-

month and 120-month sentences, he filed a notice of appeal. His appointed counsel 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 18-1284 Page 2

asserts that the appeal is frivolous and moves to withdraw, see Anders v. California, 386 

U.S. 738 (1967); Burgos opposes the motion, see CIR. R. 51(b). We grant counsel’s motion 

and dismiss the appeal.

Counsel’s brief explains the nature of the case and addresses potential issues that 

this kind of appeal might be expected to involve. Because counsel’s analysis appears 

thorough, we limit our review to the issues counsel discusses as well as those Burgos

wishes to raise. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). Burgos does not 

want to challenge his guilty plea, so counsel appropriately avoids discussing whether 

the plea was knowing and voluntary. See United States v. Konczak, 683 F.3d 348, 349 

(7th Cir. 2012).

To begin with, counsel notes that Burgos’s sentence was enhanced due to his

career offender status, see U.S.S.G. § 4B1.1, and questions whether this classification is 

contestable. Counsel considers and rejects several arguments including whether the 

proper version of the guidelines was used and whether his underlying offenses were in 

fact crimes of violence. We agree with counsel’s assessment that there are no nonfrivolous arguments to be made about Burgos’s career-offender status. 

Further, it would be frivolous to challenge the enhancement because, as counsel 

notes, Burgos “repeatedly agreed” that he is a career offender. In his sentencing 

memorandum, Burgos related that he has two prior felony convictions for crimes of 

violence and admitted that he is a career offender. During the sentencing hearing, the 

government stated—and Burgos explicitly agreed—that he was a career offender with 

an offense level of 29, a criminal history category of VI, and that the proper guidelines 

range was 151 to 188 months’ imprisonment. And at one point, the judge questioned 

Burgos about a notation in his sentencing memorandum that his criminal history 

category was IV, not VI, as career offender status requires. Burgos responded: “Judge, 

it’s just a typo. It should be six.” These repeated affirmations of his career-offender 

status are inconsistent with a negligent or accidental failure to object. Forfeiture 

happens through accident or negligence; waiver happens intentionally. United States v. 

Olano, 507 U.S. 725, 733 (1993). See also United States v. Fuentes, 858 F.3d 1119, 1121 

(7th Cir. 2017) (repeated affirmations in memoranda and at sentencing could not “be 

considered negligent oversights that might qualify as forfeiture”).

Counsel also considers whether Burgos’s sentence could colorably be challenged 

on reasonableness grounds but correctly determines that this, too, would be frivolous. 

Burgos’s 188-month sentence is within the guidelines range of 151 to 188 months, 
No. 18-1284 Page 3

making it presumptively reasonable on appeal. United States v. Mykytiuk, 415 F.3d 606, 

608 (7th Cir. 2005). Nothing in the record could rebut the presumption: the district court 

considered Burgos’s arguments in mitigation, walked through the § 3553(a) factors, and 

fully explained its reasoning. 

Likewise, counsel correctly concludes that an attack on Burgos’s conditions of 

supervised release would inevitably fail. Burgos forfeited this argument; he 

communicated to the judge that he and his attorney had reviewed the conditions 

together prior to the hearing, the conditions he reviewed were the same he received at 

sentencing, and Burgos told the judge he had no objections. See United States v. Lewis, 

823 F.3d 1075, 1083 (7th Cir. 2016). And there would be no plain error because the court 

has discretion to impose supervised-release conditions and need not provide a separate 

explanation for them. United States v. Bloch, 825 F.3d 862, 869 (7th Cir. 2016); United 

States v. Kappes, 782 F.3d 828, 837 (7th Cir. 2015).

In his Rule 51(b) response, Burgos presents the additional argument that the 

judge improperly attributed an earlier drive-by shooting to him and relied upon this 

inaccurate information during sentencing. See United States v. Tucker, 404 U.S. 443, 447 

(1972). But the judge did no such thing: after discussing the drive-by shooting, the judge

explicitly said, “But I don’t rely on that in the sentencing. It’s not necessary.” Because 

Burgos could not demonstrate the necessary reliance, see United States v. Walton, 907 

F.3d 548, 552 (7th Cir. 2018), this argument would be frivolous.

We GRANT the motion to withdraw and DISMISS the appeal.