                     NONPRECEDENTIAL DISPOSITION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 8, 2007
                             Decided March 14, 2007

                                      Before

                     Hon. DANIEL A. MANION, Circuit Judge

                     Hon. MICHAEL S. KANNE, Circuit Judge

                     Hon. DIANE P. WOOD, Circuit Judge

No. 06-2115

UNITED STATES OF AMERICA,                      Appeal from the United States District
              Plaintiff-Appellee,              Court for the Northern District of
                                               Indiana, Fort Wayne Division.
      v.
                                               No. 05 CR 48
CORNELIUS JERMAINE BENSON,
            Defendant-Appellant.               William C. Lee,
                                               Judge.



                                     ORDER

      In 2005, Cornelius Benson was charged with the armed robbery of a federally
insured credit union, see 18 U.S.C. §§ 2, 2113(a), (d), and possessing a firearm
during a crime of violence, see 18 U.S.C. §§ 2, 924(c). A jury found Benson guilty of
armed robbery but acquitted him of firearm possession. The district court
sentenced him to 285 months’ imprisonment.

      Benson seeks to appeal his conviction, but his appointed counsel moves to
withdraw because he cannot discern a nonfrivolous issue for appeal. See Anders v.
California, 386 U.S. 738 (1967). Benson has filed a response to counsel’s motion.
No. 06-2115                                                                    Page 2



See Cir. R. 51(b). Counsel’s supporting brief is facially adequate, so we limit our
review to those potential issues identified by counsel and by Benson. See United
States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 1997).

       At Benson’s jury trial, his counsel admitted in opening statement that
Benson was one of two men who committed the robbery. Benson’s counsel,
however, argued that Benson did not possess a gun at any time—was therefore
unarmed— and did not know his accomplice had a gun. Following opening
statements, the judge excused the jury and questioned Benson under oath to see if
he understood and agreed with the strategy taken by his counsel of conceding to the
lesser-included offense of unarmed robbery. Benson responded that he had
discussed the trial strategy with his counsel to his satisfaction and that he
supported it.

       In light of Benson’s admission, the parties stipulated to many facts
surrounding the robbery, and the trial focused on whether Benson and his
accomplice had used handguns. At the end of the trial, the district judge instructed
the jury on both charged counts, as well as the lesser-included offense of unarmed
robbery, because of Benson’s admission to that crime. The jury sent a question to
the judge, asking which forms they needed to complete to record their verdict. The
judge provided the jury with general instructions about the appropriate forms to
complete, as agreed upon by both counsel. During his explanation the judge added,
“The defendant has, in effect, admitted through his statements and arguments, that
he committed the lesser-included offense.” Afterward, the jury returned a verdict of
guilty of armed robbery and not guilty of possession of a handgun during and in
relation to a crime of violence.

       Counsel first considers whether Benson could argue that his armed robbery
conviction is unsupported by sufficient evidence. Such a challenge would be “an
uphill battle,” see United States v. Wallace, 212 F.3d 1000, 1003 (7th Cir. 2000), and
we agree that it would be frivolous here, because a rational fact finder could have
found that the essential elements of the crime were established beyond a reasonable
doubt. The trial evidence included Benson’s admission that he robbed the federally
insured credit union, the testimony of three witnesses stating that both robbers
carried handguns, surveillance video of the robbery, the discovery of a shoe print
matching Benson’s at the spot where he vaulted the teller counter, the discovery of
the getaway car, and the discovery of bait money from the credit union in Benson’s
possession. Thus, the evidence rationally supported a finding of Benson’s guilt of
armed robbery under 18 U.S.C.§ 2113. For similar reasons, the evidence also
supported a finding that Benson was guilty of aiding and abetting the armed
robbery committed by his accomplice. An aider and abetter is responsible to the
same degree as a principal, see 18 U.S.C. § 2, and the jury was so instructed.
No. 06-2115                                                                    Page 3



Accordingly, a reasonable fact finder could have found Benson guilty of armed
robbery either because Benson carried a gun during the robbery or because he aided
and abetted his armed accomplice.

       Counsel also considers whether Benson could argue that his conviction for
armed robbery was inconsistent with the jury’s finding that he did not possess a
handgun. We agree with counsel that any challenge on these grounds would be
frivolous because the verdicts are not inconsistent. If the jury could rationally find
that Benson knowingly aided an armed robbery, as discussed above, then his guilt
on that count does not require that he also be convicted of possessing the handgun
alleged in the § 924(c) count. See Wallace, 212 F.3d at 1004. Furthermore,
acquittal on the possession count does not dictate acquittal on the armed robbery
count because each count is treated as a separate indictment that is independent of
the verdict on any other count. See United States v. Powell, 469 U.S. 57, 62-63
(1984); Castillo v. United States, 148 F.3d 770, 774-75 (7th Cir. 1998). In short,
inconsistent verdicts do not entitle the defendant to relief. United States v. Pesman,
443 F.3d 912, 915 (7th Cir. 2006).

        Next, counsel considers whether Benson could argue that he was prejudiced
by the instructions the court gave to the jury after they inquired about the proper
verdict forms to complete. Benson’s counsel approved the instructions given at
trial, so we would only review the instructions for plain error and would only
reverse if the error stemming from the instructions seriously affected the fairness,
integrity, or public reputation of the proceedings below. United States v. Ackley,
296 F.3d 603, 606 (7th Cir. 2002). Here, the jury reported to the judge that they
had already reached a verdict and merely wanted to know what forms to fill out.
The judge explained that first they should look to the forms for armed robbery and
fill out either the guilty or not guilty form, depending upon their decision. He said
the same for the possession count. He instructed that the jury should go on to the
lesser offense of unarmed robbery only if they found Benson not guilty of the armed
robbery and possession counts. He also explained that the armed robbery and
possession counts were independent and Benson did not have to be found guilty of
possessing a handgun to be guilty of armed robbery. These instructions all state
correct principles of law and do not evince any plain error. See id. The judge’s
statement regarding Benson’s admission of guilt through his counsel’s opening
statement does not call into question the fairness of the proceedings because the
statement merely repeated Benson’s own admission. Therefore, we agree with
counsel that any challenge on this ground would be frivolous.

      Next, counsel considers whether Benson could successfully challenge his
sentence as unreasonable. Because Benson has two prior convictions for armed
robbery, the district court correctly found that § 4B1.1 of the Sentencing Guidelines
No. 06-2115                                                                   Page 4



requires he receive an offence level of 34 and a criminal history category of VI.
Benson had a resultant sentencing range of 262-327 months, with a statutory
maximum of 300 months. After hearing argument, the judge took account of factors
in this case relevant to 18 U.S.C. § 3353(a), including that this was Benson’s third
armed robbery conviction and that he admitted his involvement in the crime at
trial. The judge imposed a sentence of 285 months, and neither Benson nor his
counsel now identify any reason why this sentence is unreasonable. Not only is a
sentence within the guidelines range presumptively reasonable, United States v.
Gama-Gonzalez, 469 F.3d 1109, 1110-11 (7th Cir. 2006), but even without the
presumption there is no non-frivolous basis for suggesting that Benson’s sentence is
unreasonable.

       Benson argues in his 51(b) response that he received ineffective assistance of
counsel at trial, and his appellate counsel also considers this argument in his
Anders brief. But a proper record has not been developed to fully examine the
merits of the various potential claims of ineffectiveness, and error is not apparent
on the record alone. Therefore Benson’s ineffective assistance claim is better suited
to collateral attack, at which time a full record may be developed. See United States
v. Harris, 394 F.3d 543, 557-58 (7th Cir. 2005) (citing Massaro v. United States, 538
U.S. 500, 504-505 (2003)).

       Benson also argues that his crime was not a federal offense because the
government did not prove that the victim credit union was federally insured. But
Benson stipulated at trial that the credit union was federally insured, and that
stipulation served to satisfy the burden of proof on that element of the offense. See
United States v. Birk, 453 F.3d 893, 897 (7th Cir. 2006).

       Next, Benson argues that when the judge questioned him about his assent to
his counsel’s concession in opening statement that he robbed the bank, the judge
subjected him to a “de facto” change of plea (pleading guilty to the lesser included
offense of unarmed robbery) without the required Rule 11 warnings. He argues
that he was harmed by this error during jury deliberations when the judge told the
jury that Benson had essentially admitted to unarmed robbery. But the jury
convicted Benson of armed robbery, not of unarmed robbery, and thus his admission
had no bearing on his conviction. If anything, his admission to unarmed robbery
helped his case because the jury could find him guilty of armed robbery based on
the fact that his cohort definitely used the gun, while acquitting him, as the jury
did, on the possession of a firearm offense. A conviction on the latter offense would
have required a consecutive sentence. 18 U.S.C. § 924(c)(1)(D)(ii). In any event, Rule
11 does not apply because Benson did not plead guilty.
No. 06-2115                                                                     Page 5



       Next, Benson argues that the judge’s questions to him following his counsel’s
opening statement were compelled testimony in violation of the Fifth Amendment
privilege against self-incrimination. Benson’s privilege, however, was knowingly
waived when he voluntarily answered the questions of the judge in the presence of
and with the assent of his attorney. Mitchell v. United States, 526 U.S. 314, 321
(1999); Rogers v. United States, 340 U.S. 367, 440 (1951). Accordingly, any
challenge on this ground would be frivolous.

        Finally, Benson argues that his counsel’s Anders brief runs contrary to
counsel’s obligation to argue his appeal. But counsel may and should file an Anders
brief if, after careful consideration, counsel does not see any non-frivolous issues for
appeal. 386 U.S. at 744. We have scrutinized counsel’s brief as well as Benson’s
response for any non-frivolous issues, and find none.

      For the foregoing reasons, the motion to withdraw is GRANTED and the
appeal is DISMISSED.
