# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 9, 2011

Decided February 10, 2011

Before

FRANK H. EASTERBROOK, Chief Judge

MICHAEL S. KANNE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 10

‐ 1996

UNITED STATES OF AMERICA, Appeal from the United States District

Plaintiff

‐ Appellee , Court for the Central District of Illinois.

v. No. 08

‐ 10050

‐ 001

DEANDRE L. BOBO, Michael M. Mihm,

Defendant

‐ Appellant

. Judge.



### O R D E R

Deandre Bobo arranged to sell crack cocaine to a confidential source working for the

Peoria police. The source, wearing an electronic monitoring device, met Bobo and

purchased approximately 61 grams of crack cocaine with money provided by the police.

Bobo pleaded guilty without a plea agreement to distributing more than 50 grams of crack

cocaine, see 21 U.S.C. § 841(a)(1), and was sentenced as a career offender to 240 months in

prison, slightly lower than the calculated range of 262

‐ 327 months. Bobo appeals but his

appointed lawyer cannot identify any nonfrivolous arguments to pursue and moves to

withdraw. See Anders v. California

, 386 U.S. 738, 744 (1967). Bobo has not accepted our

invitation to respond to counsel’s motion. See C IR

. 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). NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 1996 Page 2

On appeal Bobo seeks to set his guilty plea aside, so counsel properly considers

whether Bobo could challenge the adequacy of the plea colloquy. See F ED

. R. C RIM

. P. 11;

United States v. Knox

, 287 F.3d 667, 670

‐ 71 (7th Cir. 2002). In district court Bobo moved to

withdraw his guilty plea five days after he initially pleaded guilty; after a hearing the court

granted his motion. But Bobo changed his mind just two days later and pleaded guilty

again after another plea colloquy. Four months passed, a presentence investigation report

was prepared, and Bobo again moved to withdraw his guilty plea. The district court denied

this motion to withdraw, noting that the court had addressed any problems when it

permitted Bobo to withdraw his first guilty plea. Bobo moved to withdraw his plea two

more times, but he withdrew each motion voluntarily.

Because Bobo ultimately stood by his guilty plea, our review would be only for plain

error. See F ED

. R. C RIM

. P. 52(b); Puckett v. United States

, 129 S. Ct. 1423, 1429 (2009); United

States v. Anderson

, 604 F.3d 997, 1001 (7th Cir. 2010). We agree with counsel that any

challenge to the voluntariness of Bobo’s plea would be frivolous. The district court

conducted an extensive plea colloquy with Bobo, advising him, among other things, of the

charges against him and the corresponding statutory penalties, his right to plead not guilty,

and his right to a jury trial at which he would be represented by counsel and could

cross

‐ examine adverse witnesses. See F ED

. R. C RIM

. P. 11(b)(1)(B)

‐ (I)

. The judge asked Bobo

if he understood the consequences of his guilty plea and the rights he was giving up, and

Bobo responded unequivocally that he did. See id. at 11(b)(1)(N). The government

recounted the factual allegations against Bobo at length, and Bobo admitted that the

allegations were true. And Bobo ultimately reaffirmed his second guilty plea by

withdrawing his motions to withdraw. See Doe v. United States

, 51 F.3d 693, 700

‐ 01 (7th Cir.

1995).

Counsel next considers whether the district court committed error when it denied

Bobo’s objection to the application of the career

‐ offender guideline, but properly concludes

that a challenge to that denial would be frivolous. Before he was sentenced, Bobo argued

that the court should not have applied the career

‐ offender provision because he committed

one of his prior felonies before turning 18 years old (he committed residential burglary

when he was 17). A defendant is a career offender if (1) he was at least 18 when he

committed the present offense; (2) the present offense is a felony that is either a crime of

violence or a controlled substance offense; and (3) he has at least 2 prior felony convictions

for either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a).

Although Bobo was only 17 when he was convicted for residential burglary, the offense

may constitute a prior felony for career offender purposes if it was classified as an adult

conviction in Illinois. See U.S.S.G. § 4B1.2(a), cmt. n.1; United States v. Otero

, 495 F.3d 393,

401 (7th Cir. 2007)

. The Presentence Investigation Report classified it as such, noting that

Bobo had pleaded guilty in the Peoria County Circuit Court to the charge, for which heNo. 10

‐ 1996 Page 3

received a 4

‐ year sentence. Bobo could not have received a sentence for a definite term of 4

years if the state had been proceeding under the Illinois Juveniles Court Act, § 5

‐ 750(3).

United States v. Gregory

, 591 F.3d 964, 968 (7th Cir. 2010). In any event Bobo received a

below

‐ guidelines sentence, and we would presume any below

‐ guidelines sentence to be

reasonable. See United States v. Pape

, 601 F.3d 743, 746 (7th Cir. 2010); United States v.

Wallace

, 531 F.3d 504, 507 (7th Cir. 2008).

Finally, counsel considers whether Bobo could argue that trial counsel was

ineffective when he failed to investigate all evidence related to the confidential source. But

a claim of ineffective assistance would more properly be presented on collateral review,

where the record could be more fully developed. See Massaro v. United States

, 538 U.S. 500,

504

‐ 05 (2003); United States v. Harris

, 394 F.3d 543, 557

‐ 58 (7th Cir. 2005).

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