                             UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53




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

                             Submitted January 4, 2006
                              Decided January 5, 2006

                                       Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                     Hon. DANIEL A. MANION, Circuit Judge

                     Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 05-2300

UNITED STATES OF AMERICA,                       Appeal from the United States
    Plaintiff-Appellee,                         District Court for the Eastern
                                                District of Wisconsin
      v.
                                                No. 03-CR-224
MARK C. RUTHERFORD,
    Defendant-Appellant.                        Lynn Adelman,
                                                Judge.

                                     ORDER

       Mark Rutherford pleaded guilty to transporting aliens in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii). The district court sentenced him to 24 months’ imprisonment, to
run concurrently with a four-year, state court sentence he was serving in
Tennessee, and three years’ supervised release. Rutherford filed a notice of appeal,
but his appointed counsel moves to withdraw, asserting that he cannot find a non-
frivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967).
Rutherford was invited to respond to his counsel’s motion, see Cir. R. 51(b), and has
responded. Our review is limited to the potential issues identified in counsel’s brief
and in Rutherford’s submission. See United States v. Tabb, 125 F.3d 583, 584 (7th
Cir. 1997) (per curiam).
No. 05-2300                                                                    Page 2

       In September 2002, Rutherford and his brother Steven drove a truck
harboring ten illegal aliens from Tucson, Arizona to Greenfield, Wisconsin. The
brothers were stopped and arrested in Greenfield after a local officer who
encountered them at a gas station became curious about their furtive behavior,
their Arizona license plates, and several persons he saw hiding in the back of the
truck. Charges filed against the Rutherfords were shortly dismissed in anticipation
of their cooperation with immigration authorities in Tucson in busting alien-
smuggling rings. Rutherford was told that if his cooperation resulted in “positive
outcomes,” the charges would remain dismissed. As it happened, however,
immigration authorities in Tucson were unable to use him, and approximately a
year later, the United States Attorney in Wisconsin refiled the original charges.

       Rutherford then moved to dismiss the indictment, claiming that the
government had breached its agreement with him. He also moved to suppress the
evidence seized during the Terry stop of his truck, alleging that Greenfield police
lacked reasonable suspicion that he had committed, or was in the process of
committing, a crime. The district court granted him an evidentiary hearing, but
went on to deny both motions. Rutherford eventually pleaded guilty. Within ten
days, he attempted to withdraw his plea, claiming that he was under “great duress”
when he made it and that he had received ineffective assistance of counsel. The
district court denied his motion to withdraw his plea at sentencing.

       Counsel first considers whether Rutherford might challenge the
voluntariness of his plea. He argues that there is no evidence of any defect in the
plea negotiation process, and that any potential defect in negotiations prior to the
plea was waived. See United States v. Villegas, 388 F.3d 317, 322 (7th Cir. 2004)
(noting that “an unconditional guilty plea waives all non-jurisdictional defects
occurring prior to the plea”) (quoting United States v. Elizalde-Adame, 262 F.3d
637, 639 (7th Cir. 2001)). We agree that contesting the validity of the plea would be
frivolous. The district court’s colloquy with Rutherford substantially satisfied the
requirements of Fed. R. Crim. P. 11, and that is our guarantee that the plea was
voluntary. See United States v. Blalock, 321 F.3d 686, 688 (7th Cir. 2003).
Moreover, any challenge predicated on Rutherford’s contentions that counsel
threatened him with a longer sentence if he did not plead, or promised him a
shorter one if he did, is frivolous because the district court was entitled to rely on
Rutherford’s statements under oath that he had received neither negative nor
positive inducement to plead. See United States v. Stewart, 198 F.3d 984, 987 (7th
Cir. 1999); United States v. Martinez, 169 F.3d 1049, 1054 (7th Cir. 1999) (observing
that we presume the defendant’s statements during a Rule 11 colloquy are true).

       Counsel also contemplates that Rutherford might wish to argue that the
district court erred in refusing his motion to withdraw his plea. But counsel could
think of no “fair and just reason” to permit him to withdraw. See United States v.
No. 05-2300                                                                    Page 3

Carroll, 412 F.3d 787, 792-93 (7th Cir. 2005) (per curiam) (noting that actual
innocence of the crime and ineffective assistance of counsel are valid grounds);
United States v. Messino, 55 F.3d 1241, 1248 (7th Cir. 1995) (stating that defendant
“faces an uphill battle” in persuading the court) (citation and quotation omitted).
And Rutherford himself failed to suggest a reason when his motion was denied at
his sentencing hearing.

       Counsel next considers whether Rutherford might argue that his sentence
was unreasonable. But because it is within the recommended guidelines range, it is
presumptively reasonable, see United States v. Paulus, 419 F.3d 693, 700 (7th Cir.
2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and counsel
suggests no fact that could rebut the presumption. See 18 U.S.C. § 3553(a) (listing
factors that must be considered in imposing sentence). Therefore, we agree with
counsel that the argument would be frivolous.

       We need not retrace counsel’s third and fourth potential arguments
addressing the motion to suppress and the motion to dismiss because both
arguments are frivolous for a more fundamental reason: they were waived by entry
of the guilty plea. See Villegas, 388 F.3d at 322.

        Rutherford advances five arguments of his own in his Cir. R. 51(b) motion.
These include challenges to the denial of his two pretrial motions; a claim under the
Speedy Trial Act, see 18 U.S.C. § 3161; a claim that the judge coerced his guilty
plea; and a claim for ineffective assistance of counsel. All of these are clearly
frivolous. In light of the preceding discussion, we need say nothing further about
Rutherford’s challenges to the denials of the motion to suppress and the motion to
dismiss. Moreover, we note that his Speedy Trial Act claim is waived because of his
failure to assert his rights under the Act before entering his guilty plea. See United
States v. Morgan, 384 F.3d 439, 442 (7th Cir. 2004). His claim of judicial “coercion”
is frivolous because he points to no word or action of the district court that would
serve as an objective basis for the claim. Furthermore, because he has raised the
issue for the first time on appeal, he must prove his case under the more demanding
plain error standard. See United States v. Dominguez Benitez, 542 U.S. 74, 76
(2004); United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005).

       Finally, Rutherford’s ineffective assistance of counsel claim is frivolous
because such claims require that we have a record directed toward examining the
reasons underlying counsel’s choices and strategies. As we have often repeated, it
is generally inappropriate to bring a claim of ineffective assistance of counsel on
direct appeal. See Massaro v. United States, 538 U.S. 500, 504-05 (2003); United
States v. Schuh, 289 F.3d 968, 976 (7th Cir. 2002); Martinez, 169 F.3d at 1052. We
are aware that Rutherford has attempted to create a sufficient record by sending us
copies of his correspondence with his lawyers, but even if these materials were
No. 05-2300                                                              Page 4

adequate, we would be unable to consider them since a number of them were never
presented to the district court. See Elizalde-Adame, 262 F.3d at 640.

      Accordingly, we GRANT counsel’s motion to withdraw and order that the
appeal be DISMISSED.
