                              UNPUBLISHED ORDER
                           Not to be cited per Circuit Rule 53




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

                             Submitted December 13, 2005
                              Decided December 14, 2005

                                         Before

                        Hon. RICHARD A. POSNER, Circuit Judge

                        Hon. ANN CLAIRE WILLIAMS, Circuit Judge

                        Hon. DIANE S. SYKES, Circuit Judge

No. 05-2612

UNITED STATES of AMERICA,                       Appeal from the United States District
    Plaintiff-Appellee,                         Court for the Central District of Illinois

       v.                                       No. 03-30114-001

SUARAWU AMUDA,                                  Richard Mills,
    Defendant-Appellant.                        Judge.

                                       ORDER

       Suarawu Amuda entered an open guilty plea to possession of a machinegun,
18 U.S.C. § 922(o); possession of a firearm by a felon, id. § 922(g)(1); and distribution
of crack cocaine, 21 U.S.C. § 841(a)(1). The district court imposed concurrent
sentences of 120 months’ imprisonment and three years’ supervised release for the
gun charges and 130 months’ imprisonment and eight years’ supervised release for
the drug charge. Amuda filed a notice of appeal, but his attorney now seeks to
withdraw under Anders v. California, 386 U.S. 738 (1967), because he is unable to
find a nonfrivolous issue for appeal. Amuda received a copy of counsel's motion, see
Cir. R. 51(b), and has responded. We limit our review of the record to those potential
issues identified in counsel's facially adequate brief, see United States v. Tabb, 125
F.3d 583, 584 (7th Cir. 1997) (per curiam), and in Amuda's submissions.
No. 05-2612                                                                      Page 2

       Counsel first considers whether Amuda could argue that Congress exceeded
its powers under the Commerce Clause in enacting § 922(o), which prohibits the
possession or transfer of any machinegun that was not already lawfully possessed
when the statute was enacted in 1986, including machineguns manufactured and
continuously possessed within the same state. Amuda did not challenge the statute
in the district court, so we would reverse only for plain error. See United States v.
Dumeisi, 424 F.3d 566, 576 (7th Cir. 2005). We, as well as the other circuits that
have considered the constitutionality of § 922(o), have held that the statute is a valid
exercise of Congress’s power, United States v. Kenney, 91 F.3d 884, 891 (7th Cir.
1996); see also United States v. Franklin, 157 F.3d 90, 96 (2d Cir. 1998) (collecting
cases), so it would be frivolous for Amuda to argue that the district court committed
plain error by convicting him under the statute.

       Counsel next considers whether Amuda could challenge the district court’s
finding that he distributed 35 to 50 grams of crack, and in his Rule 51(b) response
Amuda argues that the presentence investigation report includes other unspecified
errors that he could contest. Counsel concludes that Amuda waived his right to
challenge the drug quantity by withdrawing his objection to the probation officer’s
calculation and, indeed, stipulating the crack amount was exactly as found by the
district court. We agree. Waiver occurs when a defendant intentionally relinquishes
a known right, so appellate review of the drug quantity is precluded. United States
v. Baretz, 411 F.3d 867, 875 (7th Cir. 2005). The same is true as to other factual
matters in the presentence report. Before sentencing, Amuda objected to several
proposed factual findings besides the drug quantity, but then withdrew his
objections and filed a joint statement of position on sentencing factors with the
government. At sentencing Amuda specifically stated that he no longer objected to
anything included in the presentence report. Thus he waived any challenge to the
proposed factual findings and guideline calculations included in the report and
adopted by the sentencing court.

       Counsel also considers whether Amuda could argue that his overall prison
sentence of 130 months is unreasonable because, although the district court followed
the United States Sentencing Guidelines, the guidelines themselves recommend a
sentence that is unreasonable for offenses involving crack versus other forms of
cocaine. See U.S.S.G. § 2D1.1(c). A sentence within a properly calculated guidelines
range is presumptively reasonable, United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005), and though a district court is free to consider the sentencing
differential between crack and other forms of cocaine, a sentence cannot be
unreasonable simply because the court does not exercise its discretion in the
defendant’s favor, see United States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005);
United States v. Cunningham, __ F.3d __, 2005 WL 3029083, at *5 (Nov. 14, 2005).
Counsel, then, is again correct that this potential issue would be frivolous.
No. 05-2612                                                                    Page 3

       Finally, Amuda suggests that trial counsel rendered ineffective assistance, but
his claims about counsel’s performance are better saved for a proceeding under 28
U.S.C. § 2255 when the necessary factual predicate can be developed. See Massaro
v. United States, 538 U.S. 500, 504 (2003); United States v. Turcotte, 405 F.3d 515,
537 (7th Cir. 2005).

      Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.
