NONPRECEDENTIAL DISPOSITION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 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.
ORDER
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 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).
No. 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 FED. R. CRIM. 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 FED. R. CRIM. 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 FED. R. CRIM. 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 he
No. 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.
