United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 19, 2012

Decided November 19, 2012

Before

WILLIAM J. BAUER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 11-3110

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

BERNARD ROBERTSON,

Defendant–Appellant.

Appeal from the United States District

Court for the Western District of Wisconsin.

No. 10-CR-186-BBC

Barbara B. Crabb,

Judge.

O R D E R

Bernard Robertson was arrested in Wisconsin in possession of pseudoephedrine,

used to make methamphetamine, after attempting to elude police officers in a car chase. He

pleaded no contest in state court to possessing a methamphetamine precursor and was

sentenced to two years in prison. See WIS. STAT. § 961.65. While serving that sentence he

was charged in federal court with conspiracy to possess pseudoephedrine with intent to

manufacture methamphetamine. See 21 U.S.C. §§ 846, 841(c)(1). Robertson pleaded guilty,

and the district court calculated a guidelines imprisonment range of 188 to 235 months

based on a total offense level of 31, see U.S.S.G. §§ 2D1.11(d)(4), 3C1.2, 3E1.1, and criminalhistory category of VI. The court sentenced Robertson to 211 months, taking into account

his incarceration on the state charge. See U.S.S.G. § 5G1.3. Robertson filed a notice of appeal,

but his newly appointed lawyer contends that the appeal is frivolous and moves to

withdraw under Anders v. California, 386 U.S. 738 (1967). Robertson has not responded to

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 11-3110 Page 2

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).

Although counsel discusses whether Robertson could challenge his guilty plea, the

lawyer does not say whether Robertson agreed to this course of action. See United States v.

Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir.

2002). If counsel did not consult Robertson, he should have. But counsel’s apparent

omission is harmless because he concludes, and we agree, that the transcript of the plea

colloquy demonstrates the district court’s substantial compliance with Federal Rule of

Criminal Procedure 11(b). See Konczak, 683 F.3d at 349. The district court explained the

rights Robertson would relinquish by pleading guilty, admonished him concerning the

consequences of his plea, ensured that it was voluntary, and determined that a factual basis

for the plea existed. See FED. R. CRIM. P. 11(b). On the present record, therefore, a challenge

to the plea colloquy or the voluntariness of Robertson’s guilty plea would be frivolous.

Appellate counsel also discusses whether Robertson could challenge his prison

sentence. Counsel has not identified any potential error in the district court’s guidelines

calculations or any procedural flaw in the sentencing proceedings. That leaves only the

possibility of a challenge to the reasonableness of the sentence imposed, a claim that

counsel correctly labels as frivolous. The court imposed a within-guidelines sentence,

which we presume is reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007); United

States v. Miranda, 505 F.3d 785, 791 (7th Cir. 2007). Counsel has not identified any reason to

set aside this presumption, nor can we. The district court discussed Robertson’s criminal

history, the failure of past sentences to deter him from crime, his need for drug treatment,

and the need to protect the public. See 18 U.S.C. § 3553(a).

Counsel last considers whether Robertson could challenge his trial counsel’s

performance during plea negotiations or at sentencing. The lawyer himself has not

confirmed any deficient performance on which to base a claim of ineffective assistance, but

Robertson apparently believes that previous counsel should have objected to the quantity

of pseudoephedrine attributed to him, see United States v. Jones, 635 F.3d 909, 915–16 (7th

Cir. 2011), and obtained records from the Internal Revenue Service and the Social Security

Administration to alleviate the probation officer’s skepticism about Robertson’s unverified

claim that he had been employed before his arrest, see Stevens v. McBride, 489 F.3d 883,

895–96 (7th Cir. 2007). Appellate counsel speculates that his predecessor’s choices might

have been strategic or that any deficiency was not prejudicial. See Strickland v. Washington,

466 U.S. 668, 694 (1984); United States v. Parker, 609 F.3d 891, 894–95 (7th Cir. 2010). But this

kind of uncertainty is the very reason that a claim of ineffective assistance of counsel is best

left for a postconviction proceeding where the record may be developed. See Massaro v.
No. 11-3110 Page 3

United States, 538 U.S. 500, 504–05 (2003); 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.