United States v. Shuff, Kenneth R. , 250 F. App'x 735 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 October 10, 2007
Decided October 11, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 07-1124
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Central
District of Illinois
v.
No. 06-30001-001
KENNETH “RANDY” SHUFF,
Defendant-Appellant. Jeanne E. Scott,
Judge.
ORDER
Kenneth “Randy” Shuff, a convicted felon, was arrested after his then-wife
contacted authorities and led them to a wooden cabinet in the garage where Shuff
stored two shotguns and a rifle. Shuff was referred to federal authorities and
pleaded guilty to possession of firearms by a felon. See 18 U.S.C. § 922(g). At
sentencing the district court calculated a guidelines imprisonment range of 46 to 57
months and imposed a 48-month sentence. Shuff filed a notice of appeal, but
appointed counsel moves to withdraw under Anders v. California, 386 U.S. 738(1967), because he cannot discern any nonfrivolous ground for appeal. Shuff did not
accept our invitation to respond to his lawyer’s submission. See Cir. R. 51(b).
Limiting our review to the potential issue identified in counsel’s facially adequate
brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002), we grant
counsel’s motion and dismiss the appeal.
No. 07-1124 Page 2
In his Anders submission, counsel identifies the voluntariness of Shuff’s
guilty plea as the sole potential ground for appeal. According to counsel, Shuff
might argue that the magistrate judge who conducted the plea colloquy for the
district court’s review failed to comply with Federal Rule of Criminal Procedure 11,
or that trial counsel rendered ineffective assistance by advising Shuff to plead
guilty. We have held that, in an Anders submission, counsel should not explore
potential challenges to a guilty plea unless the appellant wants the plea set aside.
United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2001); see also Bethel v. United
States, 458 F.3d 711, 718 (7th Cir. 2006) (explaining that appellant who pleaded
guilty can show ineffective assistance of counsel only by proving that, absent
deficient performance, “he would not have pled guilty, but would have insisted on
going to trial”). Despite having interviewed Shuff, counsel does not explicitly
represent that Shuff wishes to have his guilty plea vacated. Cf. United States v.
Torres, 482 F.3d 925, 925 (7th Cir. 2007). More significantly, though, counsel does
not point to any deficiency in the Rule 11 colloquy, or any evidence of a professional
lapse by trial counsel, that could undermine Shuff’s plea on direct appeal even if
Shuff does want the plea set aside. Counsel instead says that the plea colloquy
substantially complied with Rule 11, and we agree. See United States v. Blalock,
321 F.3d 686, 688-89 (7th Cir. 2003). With respect to trial counsel’s advice, even if
Shuff is unhappy with trial counsel’s performance due to some shortcoming that is
not apparent from this record, claims of ineffective assistance are better suited to a
collateral proceeding under 28 U.S.C. § 2255 where a fuller record may be
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).
For the foregoing reasons, counsel’s motion to withdraw is GRANTED and
the appeal is DISMISSED.