NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 June 1, 2011

Decided June 6, 2011



### Before

F RANK H. E ASTERBROOK , Chief Judge

I LANA D IAMOND R OVNER , Circuit Judge

J OHN D ANIEL T INDER , Circuit Judge

No. 10

- 2886

U NITED S TATES OF A MERICA , Plaintiff

- Appellee

,

v

.

A NTHONY J EROME B ANDY , Defendant

- Appellant

. Appeal from the United States District Court for the Northern District of Indiana

, Hammond Division.

No. 2:09cr125

- 001 Rudy Lozano

, Judge

.

Order

Anthony Bandy pleaded guilty to possessing a firearm despite a felony conviction. 18 U.S.C. §922(g)(1). The district court sentenced him as an armed career criminal b ecause three of his convictions are violent felonies under 18 U.S.C. §924(e)(2)(B). Bandy was sentenced to 210 months’ imprisonment. His appointed attorney has moved to withdraw, concluding that the appeal is frivolous. See Anders v. California , 386 U.S. 738 (1967). Bandy filed a response under Circuit Rule 51(b).

Bandy contends, among ot her things, that his guilty plea is invalid because he is not mentally competent. He tells us that he suffers from “obsessive

- compulsive disorder,
pre

- pubescent adolescent retardation, and a hero complex.” He does not submit any medical evidence, however, or even contend that a physician or psychologist ever has concluded that he suffers from any mental shortcoming. S elf

- diagnosis does not call i nto question a person’s competence to plead guilty. The district court addressed BandyNo. 10

- 2886 Page 2

personally during the plea colloquy, and nothing in his responses implies any deficit in his understanding of th e charges or the legal process, or his abil ity to consult with counsel . See Dusky v. United States , 362 U.S. 402 (1960) (discussing the mental state r equired for a guilty plea). At the end of this colloquy, the judge found Bandy competent. We have reviewed the presentence report in addition to the plea colloquy. The PSR r elates: “defendant denied any history of mental health treatment.” The PSR also states that Bandy is a high school graduate. Neither Bandy nor his lawyer took issue with e ither aspect of the PSR before or at sentencing. An appeal based on a premise of mental incompetence would be frivolous.

Bandy also contends that his 1996 conviction in Georgia for burglar y should not have been counted as a violent felony. Counsel also considered this subject and co ncluded that such an argument would be frivolous. We agree with counsel’s ass essment. Burglary is a violent felony , §924(e)(2)(B)(ii), and a state conviction for burglary counts when it meets the federal definition of generic burglary

— entry into a building for the purpose of committing a crime. See Taylor v. United States , 495 U.S. 575 (1990)

. Georgia’s statute, Ga. Code §16

– 7

– 1(a), covers several different kinds of burglary, see United States
v. Bennett , 472 F.3d 825, 832 (11th Cir. 2006), and is divisib le under the approach of Uni ted States v. Woods , 576 F.3d 400, 404 (7th Cir. 2009). As Taylor permits, see 495 U.S. at
599

– 602 , the district court looked at the ch arging documents to determine whether Ba ndy was convicted of generic burglary. The indictment specifies that Bandy and others entered several dorm rooms on a college campus, intending to steal the occupants’ po ssessions. That meets the federal definition o f generic burglary. And, given Almendarez

Torrez v. United States , 5 23 U.S. 224 (1998), it would be frivolous to argue that any details about this conviction had to be proved anew beyond a reasonable doubt in the federal prosecution. (Bandy acknowledges th at the 1996 Georgia conviction is his, rather than that of someone else with the same name.)

Bandy contends that counsel should have asked the district judge to ignore the 1996 conviction because, he asserts, his lawyer in the Georgia prosecution did not a dvise him that a burglary conviction would have collateral consequen ces, such as a longer se ntence for a later conviction for another crime . That argument is frivolous. Custis v. Uni ted States , 511 U.S. 485 (1994), holds that convictions used to support fe deral recidivist enhancements may be contested on only one ground: that the defendant, if indigent, was not offered the opportunity to have the assistance of counsel at public expense. Bandy was represented by counsel in the Georgia prosecution, so Custis precludes the sort of argument Bandy now proposes to make.

Bandy also contends that the district judge should have suppressed some evidence that the prosecutor wanted to use, if a trial had been held. Bandy’s unconditional guilty plea waives that contentio n, see United States v. Broce , 488 U.S. 563 (1989), so his pr oposed appellate argument would be frivolo us.
Counsel correctly concluded that any challenge to the 210

- month sentence would be frivolous. The sentence falls within a properly constructed range ( 188 to 235 months)No. 10

- 2886 Page 3

and therefore is presumed reasonable. United States v. Mykytiuk , 415 F. 3d 606 (7th Cir. 2005). See Rita v. United States , 551 U.S. 338 (2007). The judge explained why he chose 210 months, discussing the seriousness of Bandy’s offense, hi s criminal history (he has many convictions i n addition to the three violent felonies), and the need to deter other felons from acquiring firearms. See 18 U.S.C. §3553(a). The sentence is unexceptionable.

Counsel’s motion to withdraw is granted, and the ap peal is dismissed as frivolous.