                        NONPRECEDENTIAL DISPOSITION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 May 16, 2014*
                                 Decided June 3, 2014

                                        Before

                           RICHARD A. POSNER, Circuit Judge

                           DANIEL A. MANION, Circuit Judge

                           ILANA DIAMOND ROVNER, Circuit Judge

No. 13-3645

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

      v.                                      No. 10-10124-01

DYTANIEL L. MCBRIDE,                          James E. Shadid,
    Defendant-Appellant.                      Chief Judge.




                                       ORDER

      Dytaniel McBride was convicted of drug offenses, conspiracy to launder money,
and arson, and was sentenced to life for the drug offenses and 20 years (to be served
concurrently) for each of the other two offenses. In McBride’s first appeal we accepted
the government’s confession of sentencing error, ordered McBride acquitted of the


      *
      This successive appeal has been submitted to the original panel under Operating
Procedure 6(b).
No. 13-3645                                                                          Page 2

arson charge, and remanded for resentencing on the three remaining counts of
conviction. See United States v. McBride, 724 F.3d 754 (7th Cir. 2013). On remand the
district court sentenced McBride to 360 months’ imprisonment on the drug offenses and
240 months’ for money laundering, to be served concurrently.

        McBride filed a notice of appeal, and his appointed attorney, who also
represented him in his first appeal and at the resentencing, asserts that the appeal is
frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967).
McBride has filed four documents challenging counsel’s motion and raising additional
issues. See CIR. R. 51(b). Counsel’s submission fully explains the nature of McBride’s
case and intelligently discusses potential challenges to the district court’s rulings.
Because the analysis in the brief appears to be thorough, we limit our review to the
subjects that counsel has discussed and the issues raised by McBride. See United States v.
Bey, --- F.3d ---, 2014 WL 1389090, at *2 (7th Cir. 2014); United States v. Wagner, 103 F.3d
551, 553 (7th Cir. 1996).

       Anticipating McBride’s responses, counsel first considers whether McBride could
challenge the merits of his convictions or any other issues outside the district court’s
resentencing order. McBride, in his filings, does not contest his new sentence but argues
that the evidence was insufficient to support his convictions, that a government witness
offered perjured testimony at his trial, and that his attorney was ineffective. Our 2013
opinion affirmed the district court’s judgment in all respects except for the two
sentencing issues that were remanded. We thus agree with counsel’s conclusion that
potential arguments outside those arising from McBride’s resentencing would be
frivolous.

       Counsel next questions whether McBride could argue that the court erred in
calculating his new sentence. Counsel correctly concludes that any such challenge
would be frivolous. The district court, relying on our earlier opinion, applied a total
offense level of 40 and a criminal history category of IV. This yielded a guidelines
imprisonment range of 360 months to life for the drug convictions, and 240 months for
the money-laundering conviction. McBride requested a sentence of 20 years, the
statutory minimum for the drug counts, arguing that drug laws are more punitive that
those for other crimes and that a lower sentence will lessen the cost of imprisoning him
while still keeping him in prison until retirement age when his risk of recidivism will be
lower. McBride cannot point to anything in the record to rebut the presumption of
reasonableness we afford within-guidelines sentences. See Rita v. United States, 551 U.S.
338, 347 (2007); United States v. Smith, 721 F.3d 904, 906 (7th Cir. 2013). And before
No. 13-3645                                                                              Page 3

imposing the new sentence the district court considered the sentencing factors
enumerated in 18 U.S.C. § 3553(a), including the nature of the offenses, McBride’s
significant criminal history, the cost to imprison him, and his age.

        Counsel finally considers whether McBride could argue that the district court
erred when it ordered him to submit to drug testing not more than six times a month
while on supervised release. Because McBride was convicted of drug-related offenses
and the district court appropriately specified a maximum number of tests, see United
States v. Gutierrez-Ceja, 711 F.3d 780, 783 (7th Cir. 2013); United States v. Tejeda, 476 F.3d
471, 473–74 (7th Cir. 2007), we agree with counsel that any challenge would be
frivolous. Further, any challenge to the special conditions would be waived because
McBride did not contest them during his first appeal. See United States v. Whitlow, 740
F.3d 433, 438–39 (7th Cir. 2014).

       McBride also explains that he would argue that he received ineffective assistance
from counsel during his first appeal. We agree with the lawyer that claims of ineffective
assistance are best raised in a collateral attack where the record can be developed. See 28
U.S.C. § 2255; Massaro v. United States, 538 U.S. 500, 504–05 (2003); United States v. Harris,
394 F.3d 543, 557–58 (7th Cir. 2005).

        Finally, McBride raises the potential argument that the district court erred when
it denied his motions for new trial and judicial notice filed while this appeal was
pending. This argument would be frivolous because it is outside the scope of McBride’s
appeal, but we discuss it briefly. The district court struck McBride’s motions for new
trial and judicial notice, reasoning that it lacked jurisdiction to consider them while
McBride’s appeal was pending. That is not quite right; the district court had jurisdiction
to deny the motion for new trial while McBride's appeal was pending, but could not
grant the motion unless this court remanded the case. See FED. R. CRIM. P. 33(b); FED. R.
APP. P. 12.1; United States v. Blankenship, 970 F.2d 283, 285 (7th Cir. 1992). Because
McBride was represented by counsel, the district court also could have rejected his pro
se filings on that basis. See United States v. Patterson, 576 F.3d 431, 436–37 (7th Cir. 2009).
And the denial did not prejudice McBride because he may renew his motion for new
trial in the district court. See FED. R. CRIM. P. 33(b)(1) (defendant must file motion within
three years after finding of guilty).

       We GRANT counsel’s motion to withdraw and DISMISS the appeal.
