                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Submitted August 23, 2006
                             Decided August 23, 2006

                                      Before

                      Hon. WILLIAM J. BAUER, Circuit Judge

                      Hon. RICHARD A. POSNER, Circuit Judge

                      Hon. DIANE P. WOOD, Circuit Judge


No. 05-3650

UNITED STATES OF AMERICA,                Appeal from the United States District
    Plaintiff-Appellee,                  Court for the Northern District of Illinois,
                                         Eastern Division
                 v.
                                         No. 04-CR-930-1
HARVEY TURNER,
    Defendant-Appellant.                 Amy J. St. Eve,
                                         Judge.

                                    ORDER

       Harvey Turner pleaded guilty without a plea agreement to possession of a
firearm by a felon, 18 U.S.C. § 922(g)(1), possession of crack cocaine with intent to
distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a
drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). At sentencing the district court
concluded—with Turner’s full agreement—that Turner is a career offender under
U.S.S.G. § 4B1.1 and that, accordingly, he faced a guidelines imprisonment range of
292 to 365 months. The court sentenced Turner to a total of 292 months. Turner
filed a notice of appeal, but his appointed counsel now seeks to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he is unable to discern a
nonfrivolous issue to pursue. Counsel’s supporting brief is facially adequate, and
No. 05-3650                                                                      Page 2

Turner has responded to our invitation under Circuit Rule 51(b) to comment on
counsel’s submission. Thus we limit our review to those potential issues identified
in counsel’s brief and Turner’s Rule 51(b) response. See United States v. Schuh, 289
F.3d 968, 973-74 (7th Cir. 2002).

       Counsel first considers whether Turner might argue that Anthony Schulman,
the second in a series of three lawyers appointed to represent Turner in the district
court, induced his guilty pleas through deficient performance. Shortly after
pleading guilty Turner submitted a pro se motion asking that he be permitted to
withdraw his guilty pleas and that Schulman be discharged; the district court
replaced Schulman with new counsel but denied without prejudice Turner’s motion
to withdraw his pleas. The new lawyer—who continues to represent Turner
here—ultimately concluded that Turner lacked good grounds to withdraw his guilty
pleas and thus never renewed Turner’s motion. Turner, therefore, effectively
ratified his guilty pleas by passing over the opportunity to challenge them with the
assistance of counsel other than Schulman, and so a claim that Schulman’s
inadequate performance was the reason for the pleas would likely be frivolous. See
Doe v. United States, 51 F.3d 693, 700-01 (7th Cir. 1995) (holding that defendant
reaffirms guilty plea by retracting motion to withdraw plea); United States v.
Darling, 766 F.2d 1095, 1101 (7th Cir. 1985). Moreover, as we have instructed, it is
usually better to bring a claim of ineffective assistance of counsel in a collateral
proceeding under 28 U.S.C. § 2255 where the record can be further developed. See
Massaro v. United States, 538 U.S. 500, 504-05 (2003); United States v. Rezin, 322
F.3d 443, 445 (7th Cir. 2003).

       Counsel next considers whether Turner could argue that 292 months in
prison is an unreasonable sentence because the application of the career-offender
guideline to his particular case overstates the seriousness of his prior convictions.
At sentencing Turner did not dispute that his guidelines range was 292 to 365
months, but he argued that a prison sentence within the range would overstate his
criminal history because “he had, essentially, a street-level-type hustler role.” After
noting the advisory nature of the guidelines, see United States v. Booker, 543 U.S.
220 (2005), the district court considered the factors identified in 18 U.S.C. § 3553(a).
The court specifically explained that criminal history is a factor to be weighed under
§ 3553(a), and that Turner has “quite the criminal history with violent acts dating
back to the age of 17” that have included “batteries and sale of drugs and
handguns.” The court concluded that the guidelines range was appropriate, and
imposed a term at the lowest point within that range. The term is presumptively
reasonable, see United States v. Paulus, 419 F.3d 693, 700 (7th Cir. 2005); United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and counsel has been unable
to construct any argument to undermine that presumption. We therefore agree
with counsel that it would be frivolous to argue that Turner’s overall prison
sentence is unreasonable.
No. 05-3650                                                                   Page 3


       In his Rule 51(b) response Turner suggests one other possible avenue for
appeal not already discussed by counsel: that his guilty pleas were involuntary
apart from attorney Schulman’s performance. Turner does not contend that the
district court failed to comply with Rule 11 of the Federal Rules of Criminal
Procedure, and it is clear from the record that the court did so. Turner’s only
contention is that he was “confused” during his plea colloquy; as evidence of his
confusion he directs our attention to a point in the transcript where the court asked
him the ages of his five children and he responded: “I’m confused right now. I don’t
know. 11, 5, 5, 4, 6.” But this is the only point during the entire plea colloquy
where Turner voiced confusion, and his effort to equate confusion about his
children’s ages with confusion about the charges or his guilty pleas is plainly
frivolous.

     For the above reasons, we GRANT counsel’s motion to withdraw and
DISMISS the appeal.
