United States v. L. Bailey

NONPRECEDENTIAL DISPOSITION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 30, 2011
Decided March 31, 2011

Before

WILLIAM J. BAUER, Circuit Judge

RICHARD A. POSNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 10-3515

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

v. No. 3:10-CR-30005-001-DRH

L.A. BAILEY, David R. Herndon,
Defendant-Appellant. Chief Judge.

ORDER

L.A. Bailey pleaded guilty to two counts of distributing crack cocaine. See 21 U.S.C.
§ 841(a)(1). The district court calculated a guidelines imprisonment range of 188 to 235
months and sentenced Bailey, who is 52, to a total of 216 months.

Bailey filed a notice of appeal, but his appointed lawyer seeks to withdraw because
he cannot identify a nonfrivolous ground for appeal. See Anders v. California, 386 U.S. 738
(1967). Bailey has not accepted our invitation to respond to counsel’s motion. See CIR. R.
51(b). We confine our review to the potential issues identified in counsel’s facially adequate
brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002). Bailey does not want his
guilty pleas vacated, so counsel properly omits any discussion of the adequacy of the plea
No. 10-3515 Page 2

colloquy or the voluntariness of the pleas. See United States v. Knox, 287 F.3d 667, 670-72 (7th
Cir. 2002).

Counsel cannot point to any procedural error in the district court’s calculation of the
guidelines imprisonment range. Nor can he identify any reason to disregard the
presumption of reasonableness applicable to sentences within the guidelines range. See Rita
v. United States, 551 U.S. 338, 347 (2007); United States v. Pape, 601 F.3d 743, 746 (7th Cir.
2010). The district court evaluated the sentencing factors in 18 U.S.C. § 3553(a) and the
arguments Bailey offered in mitigation, including his difficult upbringing, his struggles
with bipolar disorder and schizophrenia, and the lower risk of recidivism for older
defendants. But the court concluded that these mitigating factors were outweighed by
Bailey’s substantial criminal history and the seriousness of crack-cocaine distribution. We
would not conclude that the court abused its discretion in making that assessment, and thus
counsel is correct that any challenge to his sentence would be frivolous.

Counsel, who also represented Bailey in the district court, mentions the possibility of
raising a claim about his own performance but nowhere identifies a deficiency in the work
he did in the district court. In any case, we would not entertain a claim of ineffective
assistance on direct appeal where trial and appellate counsel are the same, since a lawyer
cannot be “expected to accuse himself of ineffective assistance.” United States v. Rezin, 322
F.3d 443, 445 (7th Cir. 2003). Moreover, a claim of ineffective assistance should be presented
on collateral review, where the necessary record could be developed. See Massaro v. United
States, 538 U.S. 500, 504-05 (2003); United States v. Bishop, 629 F.3d 462, 469 (5th Cir. 2010);
United States v. Harris, 394 F.3d 543, 557-58 (7th Cir. 2005).

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.