NONPRECEDENTIAL DISPOSITION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 November 17, 2010
Decided November 22, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
No. 10‐2316
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin
v.
No. 09‐CR‐159‐BBC‐02
DERRICK RAPLEY,
Defendant‐Appellant. Barbara B. Crabb,
Judge.
O R D E R
Derrick Rapley moved to northern Wisconsin in 2006 and began to sell crack cocaine
with his girlfriend on Native American tribal land. Before long he had invited associates
from Michigan to join him and had begun to supply other drug dealers. An investigation
into drug trafficking on tribal land resulted in Rapley’s arrest in 2009. Rapley pleaded
guilty to conspiring to distribute crack cocaine, see
21 U.S.C. § 846, and was sentenced to 156
months’ imprisonment in May 2010. Rapley appeals, but counsel contends that this appeal
is frivolous, and moves to withdraw under Anders v. California,
386 U.S. 738 (1967). Rapley
opposes counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues
identified in counsel’s facially adequate brief and Rapley’s response. See United States v.
Schuh,
289 F.3d 968, 973‐74 (7th Cir. 2002). We agree with counsel that the potential issues
are frivolous, grant his motion to withdraw, and dismiss the appeal.
No. 10‐2316 Page 2
Neither Rapley nor his lawyer indicates that Rapley wants to set aside his plea, so
counsel properly omits discussion of the voluntariness of the plea or the adequacy of the
plea colloquy. See United States v. Knox,
287 F.3d 667, 671 (7th Cir. 2002).
Rapley and his counsel consider challenging the district court’s finding that he was
responsible for 292 grams of cocaine base and that he played an aggravating role in the
offense. See U.S.S.G. § 3B1.1(c). But, as counsel points out, we would conclude that Rapley
waived any challenge to these findings when his lawyer at sentencing withdrew his prior
objections. See United States v. Venturella,
585 F.3d 1013, 1019 (7th Cir. 2009).
Counsel next considers challenging Rapley’s sentence as unreasonable. We would
review the reasonableness of Rapley’s sentence for abuse of discretion, United States v. Scott,
555 F.3d 605, 608 (7th Cir. 2009), and presume the reasonableness of a sentence either within
or below a properly calculated guidelines range. See United States v. Liddell,
543 F.3d 877,
885 (7th Cir. 2008). The district court correctly assessed Rapley’s total offense level at 31,
criminal history category at VI, and guidelines range at 188 to 235 months. The court also
considered the sentencing disparity between crack and powder cocaine, noting that the
same amount of powder cocaine would result in a guidelines range of 63 to 78 months. But
after considering the sentencing factors in
18 U.S.C. § 3553(a) the court determined that a
below‐guidelines sentence of 156 months was necessary to hold Rapley accountable,
“protect the community,” and provide adequate punishment. See United States v. Mendoza,
576 F.3d 711, 721 (7th Cir. 2009). As counsel does nothing to disturb the presumed
reasonableness of Rapley’s sentence, a challenge on this ground would be frivolous.
Finally, Rapley asserts only generally that his counsel was constitutionally
ineffective. But a claim of ineffective assistance is more appropriately raised in a collateral
proceeding where a more complete record can be developed. See 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.
