                        NONPRECEDENTIAL DISPOSITION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 April 29, 2020
                                 Decided April 29, 2020

                                         Before

                      ILANA DIAMOND ROVNER, Circuit Judge

                      AMY C. BARRETT, Circuit Judge

                      AMY J. ST. EVE, Circuit Judge

No. 19-3483

UNITED STATES OF AMERICA,                         Appeal from the United States District
     Plaintiff-Appellee,                          Court for the Southern District of Illinois.

      v.                                          No. 09-CR-30004-NJR-1

PATRICK D. BURTON,                                Nancy J. Rosenstengel,
     Defendant-Appellant.                         Chief Judge.



                                       ORDER

       Patrick Burton was convicted in 2010 of two counts of distributing five or more
grams of cocaine, see 18 U.S.C. § 841(a)(2), (b)(1)(B), and sentenced to 210 months’
imprisonment, at the bottom of the advisory guidelines range of 210 to 262 months and
above the ten-year statutory minimum. We dismissed his direct appeal. United States v.
Burton, 437 F. App’x 512 (7th Cir. 2011). In 2014, Burton’s sentence was reduced to
168 months based on Amendment 782 to the sentencing guidelines, which lowered the
offense level for his narcotics-related crime. See 18 U.S.C. § 3582(c). In 2019, Burton,
through counsel, moved to reduce his sentence under the First Step Act, Pub. L. No.
115-319, § 404(b), 132 Stat. 5194, 5222 (2018), which made retroactive to some defendants
No. 19-3483                                                                           Page 2

sentenced before August 3, 2010, provisions of the Fair Sentencing Act, § 801, 21 U.S.C.
§ 841(b)(1)(A)(iii), that modified the statutory penalties in § 841(b)(1). The district court
denied the motion, concluding that the Fair Sentencing Act would not affect Burton’s
overall sentence, which was based on the guidelines and not a statutory minimum. The
court commended Burton on his good behavior while in custody over the past decade
but concluded—especially considering Burton’s prior sentence reduction—that any
departure from his sentence would be “foolhardy” and “excessive.”

        Burton filed a notice of appeal, but his appointed counsel asserts that the appeal
is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 744 (1967).
We note that Anders does not extend to proceedings in which a defendant seeks to
reduce his sentence following retroactive sentencing changes. See United States v. Foster,
706 F.3d 887, 887–88 (7th Cir. 2013). Nevertheless, we follow the Anders safeguards to
ensure consideration of potential issues. See Pennsylvania v. Finley, 481 U.S. 551, 554–55
(1987); United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Burton has not
responded to counsel’s motion. See CIR. R. 51(b).

        Counsel first considers whether Burton could argue that the district court
wrongly believed that it lacked discretion to reduce Burton’s sentence further, given its
statements about his prior reduction based on Amendment 782 and the lack of any
effect of the Fair Sentencing Act on his guidelines range. But counsel appropriately
rejects this argument as frivolous. Section 404(b) of the First Step Act states that the
district court “may” reduce a sentence for a covered offense, giving it discretion. The
district court here recognized that the decision to reduce a defendant’s sentence “is left
to the sentencing court’s discretion,” so the court, we would conclude, appropriately
chose not to exercise it.

        Counsel relatedly considers whether Burton could challenge the district court’s
justification for refusing to reduce his sentence under the First Step Act but properly
regards this argument as frivolous. The court acted within its discretion when weighing
the sentencing factors under 18 U.S.C. § 3553(a), see United States v. Adams, 879 F.3d 826,
829 (7th Cir. 2018), and concluded no reduction warranted because Burton’s sentence
had previously been set above the then-statutory minimum for “good reason”—his
criminal history, his history of violence, and his misleading statements during a
competency hearing. We would not conclude that this explanation reflects any abuse of
discretion.

       Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
