United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 16, 2014*

Decided June 3, 2014

Before

 RICHARD A. POSNER, Circuit Judge

 DANIEL A. MANION, Circuit Judge

 ILANA DIAMOND ROVNER, Circuit Judge

No. 13-3645

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DYTANIEL L. MCBRIDE,

Defendant-Appellant.

Appeal from the United States District

Court for the Central District of Illinois.

No. 10-10124-01

James E. Shadid,

Chief Judge.

O R D E R

Dytaniel McBride was convicted of drug offenses, conspiracy to launder money,

and arson, and was sentenced to life for the drug offenses and 20 years (to be served

concurrently) for each of the other two offenses. In McBride’s first appeal we accepted

the government’s confession of sentencing error, ordered McBride acquitted of the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1

This successive appeal has been submitted to the original panel under Operating

*

Procedure 6(b). 
No. 13-3645 Page 2

arson charge, and remanded for resentencing on the three remaining counts of

conviction. See United States v. McBride, 724 F.3d 754 (7th Cir. 2013). On remand the

district court sentenced McBride to 360 months’ imprisonment on the drug offenses and

240 months’ for money laundering, to be served concurrently.

McBride filed a notice of appeal, and his appointed attorney, who also

represented him in his first appeal and at the resentencing, asserts that the appeal is

frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967).

McBride has filed four documents challenging counsel’s motion and raising additional

issues. See CIR. R. 51(b). Counsel’s submission fully explains the nature of McBride’s

case and intelligently discusses potential challenges to the district court’s rulings.

Because the analysis in the brief appears to be thorough, we limit our review to the

subjects that counsel has discussed and the issues raised by McBride. See United States v.

Bey, --- F.3d ---, 2014 WL 1389090, at *2 (7th Cir. 2014); United States v. Wagner, 103 F.3d

551, 553 (7th Cir. 1996).

Anticipating McBride’s responses, counsel first considers whether McBride could

challenge the merits of his convictions or any other issues outside the district court’s

resentencing order. McBride, in his filings, does not contest his new sentence but argues

that the evidence was insufficient to support his convictions, that a government witness

offered perjured testimony at his trial, and that his attorney was ineffective. Our 2013

opinion affirmed the district court’s judgment in all respects except for the two

sentencing issues that were remanded. We thus agree with counsel’s conclusion that

potential arguments outside those arising from McBride’s resentencing would be

frivolous. 

Counsel next questions whether McBride could argue that the court erred in

calculating his new sentence. Counsel correctly concludes that any such challenge

would be frivolous. The district court, relying on our earlier opinion, applied a total

offense level of 40 and a criminal history category of IV. This yielded a guidelines

imprisonment range of 360 months to life for the drug convictions, and 240 months for

the money-laundering conviction. McBride requested a sentence of 20 years, the

statutory minimum for the drug counts, arguing that drug laws are more punitive that

those for other crimes and that a lower sentence will lessen the cost of imprisoning him

while still keeping him in prison until retirement age when his risk of recidivism will be

lower. McBride cannot point to anything in the record to rebut the presumption of

reasonableness we afford within-guidelines sentences. See Rita v. United States, 551 U.S.

338, 347 (2007); United States v. Smith, 721 F.3d 904, 906 (7th Cir. 2013). And before
No. 13-3645 Page 3

imposing the new sentence the district court considered the sentencing factors

enumerated in 18 U.S.C. § 3553(a), including the nature of the offenses, McBride’s

significant criminal history, the cost to imprison him, and his age.

Counsel finally considers whether McBride could argue that the district court

erred when it ordered him to submit to drug testing not more than six times a month

while on supervised release. Because McBride was convicted of drug-related offenses

and the district court appropriately specified a maximum number of tests, see United

States v. Gutierrez-Ceja, 711 F.3d 780, 783 (7th Cir. 2013); United States v. Tejeda, 476 F.3d

471, 473–74 (7th Cir. 2007), we agree with counsel that any challenge would be

frivolous. Further, any challenge to the special conditions would be waived because

McBride did not contest them during his first appeal. See United States v. Whitlow, 740

F.3d 433, 438–39 (7th Cir. 2014). 

McBride also explains that he would argue that he received ineffective assistance

from counsel during his first appeal. We agree with the lawyer that claims of ineffective

assistance are best raised in a collateral attack where the record can be developed. See 28

U.S.C. § 2255; Massaro v. United States, 538 U.S. 500, 504–05 (2003); United States v. Harris,

394 F.3d 543, 557–58 (7th Cir. 2005).

Finally, McBride raises the potential argument that the district court erred when

it denied his motions for new trial and judicial notice filed while this appeal was

pending. This argument would be frivolous because it is outside the scope of McBride’s

appeal, but we discuss it briefly. The district court struck McBride’s motions for new

trial and judicial notice, reasoning that it lacked jurisdiction to consider them while

McBride’s appeal was pending. That is not quite right; the district court had jurisdiction

to deny the motion for new trial while McBride's appeal was pending, but could not

grant the motion unless this court remanded the case. See FED. R. CRIM. P. 33(b); FED. R.

APP. P. 12.1; United States v. Blankenship, 970 F.2d 283, 285 (7th Cir. 1992). Because

McBride was represented by counsel, the district court also could have rejected his pro

se filings on that basis. See United States v. Patterson, 576 F.3d 431, 436–37 (7th Cir. 2009).

And the denial did not prejudice McBride because he may renew his motion for new

trial in the district court. See FED. R. CRIM. P. 33(b)(1) (defendant must file motion within

three years after finding of guilty).

We GRANT counsel’s motion to withdraw and DISMISS the appeal.