                         NONPRECEDENTIAL DISPOSITION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 29, 2012
                               Decided December 18, 2012

                                          Before

                            FRANK H. EASTERBROOK, Chief Judge

                            DIANE P. WOOD, Circuit Judge

                            DIANE S. SYKES, Circuit Judge

No. 11-3487
                                               Appeal from the United States District
UNITED STATES OF AMERICA,                      Court for the Western District of Wisconsin.
     Plaintiff-Appellee,
                                               No. 09-CR-10-BBC-01
       v.
                                               Barbara B. Crabb,
ANTONIO BARRERA-PENALOZA,                      Judge.
    Defendant-Appellant.

                                        ORDER

        Antonio Barrera Penaloza, a Mexican citizen, was arrested in 2007 after police
executed a search warrant at his Wisconsin home and discovered a small amount of cocaine
and almost $20,000 in currency. He immediately confessed to selling drugs and led police
to a hidden compartment containing a half kilogram of cocaine. No charges were
immediately issued, however, and he was released from custody. Two years later Penaloza
was indicted for possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). He
was a fugitive from 2009 until March 2011 when he was caught entering the United States
illegally in the Southern District of Texas.

       Penaloza was returned to Wisconsin and pleaded guilty to the cocaine-possession
charge in the indictment. The district court calculated a guidelines imprisonment range of
No. 11-3487                                                                                 Page 2


51 to 63 months based on the amount of cocaine found in his home during the search and
additional amounts Penaloza admitted to selling, and a downward adjustment for
acceptance of responsibility. The court imposed a sentence of 51 months. Penaloza
appealed, but his appellate counsel has concluded that the appeal is frivolous and moves to
withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Penaloza opposes the motion.
See CIR. R. 51(b).

       In his Anders submission, counsel considers whether Penaloza could claim that the
factual basis proffered by the prosecutor in support of his guilty plea was inadequate. See
FED. R. CRIM. P. 11(b)(3). Counsel advises us, however, that his client has told him he does
not want his guilty plea set aside. Penaloza raises questions about the date of his arrest and
the quality of the government’s evidence relating to the element of intent to distribute, but
he does not dispute counsel’s representation that he does not want to challenge his plea.
Accordingly, counsel need not have discussed the adequacy of the factual basis for the plea
or any other aspect of the plea colloquy. See United States v. Knox, 287 F.3d 667, 670–72 (7th
Cir. 2002). Moreover, Penaloza admitted his intent to distribute by pleading guilty, see
United States v. Broce, 488 U.S. 563, 570 (1989); United States v. Phillips, 645 F.3d 859, 863 (7th
Cir. 2011); Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008), and he personally
agreed on the record with the government’s proffer that he had confessed to selling cocaine
and that he had several hundred grams of cocaine and a digital scale in his possession
when the search warrant was executed. To argue that more was necessary to sustain the
guilty plea would be frivolous. See United States v. Kilcrease, 665 F.3d 924, 929 (7th Cir. 2012).

        Counsel also evaluates whether Penaloza might argue that his 51-month prison
sentence is unreasonable but appropriately rejects this potential argument as frivolous. The
prison term is at the bottom of a properly calculated guidelines range and thus is
presumptively reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007); United States v.
Pillado, 656 F.3d 754, 772 (7th Cir. 2011). Neither counsel nor Penaloza identifies any sound
reason to disturb that presumption. The defendant argues that he should have received a
lower sentence because he was cooperative when the police raided his house, but that
contention was not made to the district court and thus cannot be the basis for a
reasonableness challenge on appeal. See United States v. Durham, 645 F.3d 883, 898 (7th Cir.
2011). The district court adequately assessed the factors in 18 U.S.C. § 3553(a), including
that Penaloza has a wife and four children in Texas and that this is his second drug offense.
The court reasonably concluded that a within-range term is necessary to provide adequate
deterrence, reflect the seriousness of the offense, and promote respect for the law. See
18 U.S.C. § 3553(a)(1), (2).
No. 11-3487                                                                           Page 3


        Finally, Penaloza complains about the performance of his trial counsel, but a claim
of ineffective assistance of counsel is best presented on collateral review where the
necessary 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).

       The motion to withdraw is GRANTED, and the appeal is DISMISSED.
