                       NONPRECEDENTIAL DISPOSITION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 April 4, 2007
                                 Decided April 6, 2007

                                         Before

                      Hon. RICHARD A. POSNER, Circuit Judge

                     Hon. DIANE P. WOOD, Circuit Judge

                     Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-3146

UNITED STATES OF AMERICA,                        Appeal from the United States
    Plaintiff-Appellee,                          District Court for the Southern District of
                                                 Indiana, Indianapolis Division
       v.
                                                 No. 1:05CR00082-001
DEMETREOUS BROWN,
    Defendant-Appellant.                         Larry J. McKinney,
                                                 Chief Judge.

                                       ORDER

       Demetreous Brown pleaded guilty to one count of conspiring with intent to
distribute more than 50 grams of crack and more than five kilograms of a substance
containing cocaine, see 18 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii)-(iii), eleven counts of
distributing crack cocaine, see 18 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and (b)(1)(B)(iii),
and one count of possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1). The
district court sentenced him to 220 months in prison. Brown appealed, but his
counsel now moves to withdraw because he cannot discern a nonfrivolous basis for
appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Brown opposed his
attorney’s submission, see Cir. R. 51(b), and moved for appointment of new counsel.
No. 06-3146                                                                     Page 2

We limit our review to the potential issues identified by counsel and Brown. See
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

       Brown in his Rule 51(b) response says that he wants his conviction vacated,
and we construe this as a desire to withdraw his guilty plea.1 He did not move to
withdraw his plea in the district court, so our review would be for plain error. See
United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Villarreal-Tamayo,
467 F.3d 630, 632 (7th Cir. 2006). Brown asserts essentially that he should be
allowed to withdraw his plea because it was not knowing and voluntary. He says
that his plea was not knowing and voluntary because he did not understand the
nature of the conspiracy charge against him, see Fed. R. Crim. P. 11(b)(1)(G). Had
he understood the charge, he says, he would have known that he had meritorious
defenses against it. For instance, he asserts that his eleven sales of crack to a
government agent establish only that he was accused of “conspiring with the
government” or that he was merely a buyer/seller of drugs, rather than a
conspirator.

       But the record does not support Brown’s claims. Not only did the
superceding indictment properly charge a conspiracy among Brown and nine non-
government agents, but the district court also substantially complied with Rule 11
of the Federal Rules of Criminal Procedure, as it was required to do to ensure that
Brown’s guilty plea is knowing and voluntary, see United States v. Blalock, 321 F.3d
686, 688 (7th Cir. 2003). Conspiracy is “generally considered a rather complicated
offense,” see id. at 689, but Brown has not argued that factors such as his age,
intelligence, or education affected his understanding of the consequences of his plea.
The district court properly explained the conspiracy charge by telling Brown its
elements and the burden of proof that the government would have to bear. Further,
the government proffered evidence supporting a conspiracy, including evidence that
Brown and others worked together to sell drugs and a gun and to avoid police
detection; communicated about upcoming drug shipments and fears of police
surveillance; and replaced their cell phones as soon as Brown thought he saw
undercover officers. Where, as here, the district court explains the conspiracy
charge, and the government provides the factual basis for it, it will suffice to ensure



      1
        Although we construe the nature of his challenge as one to the
voluntariness of his plea, Brown in fact labels this claim as one for ineffective
assistance of counsel. He basically charges counsel with failing to recognize and
inform him about the law and defenses to the charges against him. To the extent
Brown wishes to raise ineffective assistance of counsel claims, however, those are
best brought in a collateral attack. See, e.g., United States v. Rezin, 322 F.3d 443,
445 (7th Cir. 2003).
No. 06-3146                                                                   Page 3

that the guilty plea was knowing and voluntary. See id. Any such challenge here
would be frivolous.

       We turn next to counsel’s consideration of whether Brown could challenge his
sentence. Counsel first evaluates whether the district court should have credited
Brown’s claim that the government engaged in sentencing manipulation by
purchasing crack from him eleven times before arresting him. Under the doctrine
of sentencing manipulation, a sentencing court may not use evidence to increase a
defendant’s sentence “if the government procured the evidence through outrageous
conduct” just to increase the defendant’s guidelines imprisonment range. United
States v. Wagner, 467 F.3d 1085, 1090 (7th Cir. 2006) (quoting United States v.
Messino, 55 F.3d 1241, 1256 (7th Cir. 1995)). But sentencing manipulation is not
recognized as a defense in this circuit; “[i]t is within the discretion of law
enforcement to decide whether delaying the arrest of the suspect will help ensnare
co-conspirators, give the law enforcement greater understanding of the nature of
the criminal enterprise, or allow the suspect enough ‘rope to hang himself.’” Id.
(quoting United States v. Garcia, 79 F.3d 74, 75 (7th Cir. 1996)). Counsel correctly
concludes that the district court properly rejected Brown’s argument.

       Counsel also questions whether Brown could challenge the district court’s use
of the 100:1 sentencing disparity between crack cocaine and powder cocaine in
calculating Brown’s sentencing range. But a district court must to follow the 100:1
ratio in calculating defendant’s guidelines range because the ratio reflects the
“policy choices made by Congress and by the Sentencing Commission.” United
States v. Jointer, 457 F.3d 682, 686 (7th Cir. 2006). A challenge to Brown’s sentence
on this ground would be frivolous.

       Counsel also considers whether Brown could challenge the reasonableness of
his sentence under 18 U.S.C. § 3553(a). Counsel questions whether Brown could
argue that his tragic personal background, which included one parent’s murder and
the other’s suicide, merited a lower sentence.

       Brown’s sentence falls within the properly calculated guidelines range and
would therefore be presumed reasonable. United States v. Gama-Gonzalez, 469
F.3d 1109, 1110 (7th Cir. 2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). Cf. United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May
1, 2006), cert. granted, 75 U.S.L.W 3246 (U.S. Nov. 3, 2006) (No. 06-5754) (granting
writ of certiorari to decide whether presuming sentence within guidelines range to
be reasonable is consistent with United States v. Booker, 543 U.S. 220 (2005)). With
or without a presumption of reasonableness, however, a reasonableness challenge
here would be frivolous because the district court properly considered the
sentencing factors in 18 U.S.C. § 3553(a) in arriving at Brown’s sentence. The court
considered Brown’s properly calculated guidelines range, see id. § 3553(a)(4),
No. 06-3146                                                                     Page 4

Brown’s criminal history, see id. § 3553(a)(1), the seriousness of the current
offenses, see id. § 3553(a)(2)(A), Brown’s difficult childhood experiences of losing
both parents, see id. § 3553(a)(1), the supportive letters written by Brown’s family,
see id. § 3553(a)(1), the need for deterrence, see id. § 3553(a)(2)(B), and the need to
protect the public, see id. § 3553(a)(2)(C). Because there were “an awful lot of
drugs” involved and because the conviction involved a gun, which raised a
“possibility of violence,” see id. § 3553(a)(2)(A), the court found that a sentence
within the guidelines range was appropriate. The court therefore sentenced Brown
to 220 months’ imprisonment on the drug counts and 120 months’ imprisonment on
the gun count. Counsel has not identified any factors within 18 U.S.C. § 3553(a)
that would compel a lower sentence.

       Finally, Brown raises two more challenges that are readily refuted. First, he
argues that he was unaware that he was being charged with distributing crack
cocaine, as opposed to other forms of cocaine base. But the superceding indictment,
to which he pleaded guilty, charged him with eleven counts of distributing “crack,”
and the government’s proffered evidence repeatedly referred to Brown’s sales of
“crack,” so a challenge on that basis would be frivolous. Second, he challenges the
district court’s calculation of his offense level, suggesting that the district court
double-counted his firearm possession by adding two levels to his offense level for
his possession of a firearm in connection with the drug offenses, see U.S.S.G.
§ 2D1.1(b), when he had already pleaded guilty to possessing the same firearm as a
felon, see 18 U.S.C. § 922(g)(1). But it is not double-counting to add two levels
under § 2D1.1(b) where the defendant has pleaded guilty to a separate § 922(g)(1)
offense involving the same firearm, see United States v. Pierce, 388 F.3d 1136, 1138-
39 (8th Cir. 2004); United States v. Taylor, 248 F.3d 506, 516-17 (6th Cir. 2001).
Any challenge to the guidelines calculation on this basis would be frivolous.

      Brown’s remaining challenges to his sentence are also frivolous and merit no
discussion.

      Accordingly, counsel’s motion to withdraw is GRANTED, Brown’s motion to
appoint substitute counsel is DENIED, and the appeal is DISMISSED.
