United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 27, 2011

Decided August 15, 2011

Before

RICHARD D. CUDAHY, Circuit Judge

DIANE P. WOOD, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 11-1289

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALVIN C. LOVE,

Defendant-Appellant.

Appeal from the United States District 

Court for the Southern District of Illinois.

3:10-CR-30073-001-DRH

David R. Herndon,

Chief Judge.

O R D E R

Police officers pulled over Alvin Love for driving without a seat belt and arrested

him after he admitted that a firearm visible on the floorboard belonged to him. Love

pleaded guilty to possessing a firearm after having previously been convicted of a felony,

see 18 U.S.C. § 922(g)(1), and was sentenced to 51 months’ imprisonment. He filed a notice

of appeal, but his appointed lawyer, unable to identify an arguable issue to pursue, moves

to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Love has not accepted our

invitation to respond to counsel’s motion. See CIR. R. 51(b). We limit 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).

Love has given no indication that he wants his guilty plea vacated, so counsel

properly omits any discussion of the adequacy of the plea colloquy or the voluntariness of

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 11-1289 Page 2

the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir. 2002).

Counsel first evaluates whether Love could challenge the addition of three points to

his criminal-history calculation for two misdemeanor convictions. Counsel notes that Love

may have been unrepresented in these proceedings, and a misdemeanor conviction

obtained in violation of the right to counsel may not be used to enhance the punishment for

a subsequent offense. See United States v. Feliciano, 498 F.3d 661, 664-65 (7th Cir. 2007);

United States v. Hoggard, 61 F.3d 540, 542-43 (7th Cir. 1995). The defendant bears the burden

of proving that the prior conviction was invalid. See United States v. Katalinich, 113 F.3d

1475, 1481 (7th Cir. 1997). Here, the district court found that Love did not meet this burden

because he pointed to no evidence suggesting that he was unrepresented in the

misdemeanor proceedings. Indeed, at sentencing, Love could not recall whether he was

unrepresented and, if so, whether he had waived the right to counsel. We agree with

counsel that the district court did not clearly err in finding that Love had not shown that

the prior convictions were constitutionally invalid. See Hoggard, 61 F.3d at 542.

Counsel next considers whether Love could argue that his 51-month prison sentence

is substantively unreasonable, but aptly rejects any such argument as frivolous. Love’s

sentence is at the bottom of his guidelines range and thus presumptively reasonable, see

Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Pulley, 601 F.3d 660, 668 (7th

Cir. 2010), and counsel identifies no reason to disturb that presumption. When imposing

this within-guidelines sentence, the district court properly applied the § 3553(a) factors,

weighing Love’s rather extensive criminal history, see § 3553(a)(1), against his effort to

reeducate himself at a trade school in order to support his children, see § 3553(a)(2).

Last counsel considers whether Love could assert an ineffective assistance claim

against her. Because counsel represented Love at sentencing and the trial record on this

point is undeveloped, counsel is correct that Love would be better served by reserving any

such claim for collateral proceedings under 28 U.S.C. § 2255. See Massaro v. United States,

538 U.S. 500, 504-05 (2003); United States v. Isom, 635 F.3d 904, 909 (7th Cir. 2011).

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