NONPRECEDENTIAL DISPOSITION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 February 1, 2007
Decided February 1, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-2363
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, Fort Wayne Division
v.
No. 1:04CR017(1)TLS
DAVID L. REYNOLDS,
Defendant-Appellant. Theresa L. Springmann,
Judge.
ORDER
Police sent an undercover officer to make a controlled buy of crack from
David Reynolds. Perhaps becoming suspicious of his buyer’s identity, Reynolds,
while moving his gun from side-to-side on a table in front of him, demanded that
the undercover officer taste some of the drugs. The officer stalled and sent out a
distress signal to the surveillance team. Other officers then stormed the house
where the controlled buy was taking place and found over 15 grams of crack, the
gun, and Reynolds hiding in the bathroom with some of the marked money from the
buy floating in the toilet. After a jury trial Reynolds was convicted of possession
with intent to distribute cocaine base, distribution of cocaine base, and using a
firearm during a drug trafficking crime. See 21 U.S.C. § 841(a)(1); 18 U.S.C.
No. 06-2363 Page 2
§ 924(c)(1)(A). For the drug convictions, the court sentenced him within the
guidelines range to 87 months’ imprisonment, and for the firearm conviction, the
court sentenced him to a consecutive seven-year term of imprisonment, the
mandatory minimum under § 924(c)(1) when a gun has been brandished. The court
also sentenced him to concurrent terms of supervised release: four years for
possession with intent to distribute the drugs and three years each for the two
remaining convictions. Reynolds filed a timely notice of appeal, but his appointed
counsel now moves to withdraw because he cannot discern a nonfrivolous basis for
the appeal. See Anders v. California, 386 U.S. 738 (1967). We invited Reynolds to
respond to counsel’s motion, see CIR. R. 51(b), but he has not done so. 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).
Counsel first considers whether there was sufficient evidence presented at
trial to support the convictions. Since Reynolds never moved for a judgment of
acquittal, see FED. R. CRIM. P. 29, we would review such a claim for plain error,
reversing only if allowing the conviction to stand would result in a “manifest
miscarriage of justice.” United States v. Williams, 298 F.3d 688, 692 (7th Cir. 2002).
The undercover officer testified that Reynolds and a co-defendant both gave him
crack in exchange for $300, and that Reynolds displayed a gun while he demanded
that the officer taste the drugs. On the strength of this evidence, we agree with
counsel that a potential challenge would be frivolous.
Noting that the district court properly calculated the guidelines
imprisonment range for his drug offenses, counsel next considers whether Reynolds
could argue that the court should have sentenced him below that range. The
concurrent prison terms for the drug convictions are within the range and presumed
reasonable, see United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and
counsel can identify no error in the district court’s analysis of the relevant factors
under 18 U.S.C. § 3553(a). But whether or not we applied the presumption here, we
would conclude, as does counsel, that it would be frivolous for Reynolds to argue
that his overall prison term on the drug counts is unreasonable. See United States
v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006), cert. granted, 75
U.S.L.W. 3246 (U.S. Nov. 3, 2006) (No. 06-5754) (granting writ of certiorari to
decide whether it is consistent with United States v. Booker, 543 U.S. 220 (2005), to
accord presumption of reasonableness to sentence within guidelines range). We
recently noted that sentencing courts must consider serious arguments for imposing
a sentence below the guidelines range, United States v. Gama-Gonzalez, 469 F.3d
1109, 1111 (7th Cir. 2006), but in the district court Reynolds made no argument
whatsoever. Even ignoring the presumption, then, we would still agree with
counsel that a reasonableness argument concerning the drug counts would be
frivolous. See United States v. Filipiak, 466 F.3d 582, 584 (7th Cir. 2006).
Counsel also frames a similar argument about the reasonableness of his
No. 06-2363 Page 3
seven-year consecutive prison term for using a gun during the drug deal. But
counsel correctly concludes that this potential argument would be frivolous because
the statute of conviction requires a minimum sentence of seven years’ imprisonment
if the gun was brandished, 18 U.S.C. § 924(c)(1)(A)(ii), and further requires the
sentence to run consecutively with any other term of imprisonment, id. at §
924(c)(1)(D)(ii). See United States v. Roberson, No. 06-1121, 2007 WL 102989, at *1
(7th Cir. Jan. 17, 2007); United States v. Jones, 418 F.3d 726, 731 (7th Cir. 2005).
Next, counsel asks whether Reynolds might argue that the district court
erred when it imposed a total of four years’ supervised release, but counsel correctly
concludes that such an argument would be frivolous. Reynolds received the four-
year statutory minimum term of supervised release for possession with intent to
distribute 15 grams of crack, see 21 U.S.C. § 841(b)(1)(B)(iii), and the three-year
statutory minimum term for distribution of less than 5 grams of crack, see id. §
841(b)(1)(C). And the three-year term of supervised release for Reynold’s firearm
convictions falls within the statutory limit. See 18 U.S.C. § 3583(b), 3559(a)(4).
Finally, counsel considers whether Reynolds might argue that the lawyer
who represented him at sentencing was ineffective because he never advocated that
the district court go below the guidelines range in sentencing him on the drug
counts. But appellate counsel properly concludes that an ineffective-assistance
claim would be better raised in a collateral proceeding under 28 U.S.C. § 2255
where Reynolds could present additional supporting evidence. See Massaro v.
United States, 538 U.S. 500, 504 (2003); United States v. Turcotte, 405 F.3d 515, 537
(7th Cir. 2005).
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.