                           NONPRECEDENTIAL DISPOSITION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 16, 2011
                                 Decided November 28, 2011

                                            Before

                             JOHN L. COFFEY, Circuit Judge

                             JOEL M. FLAUM, Circuit Judge

                             KENNETH F. RIPPLE, Circuit Judge

No. 11-1431

UNITED STATES OF AMERICA,                            Appeal from the United States District
     Plaintiff-Appellee,                             Court for the Northern District of Illinois,
                                                     Western Division.
       v.
                                                     No. 09 CR 50024-1
RANDOLPH SULLIVAN,
    Defendant-Appellant.                             Frederick J. Kapala,
                                                     Judge.

                                          ORDER

         After police officers searched his home pursuant to a warrant, Randolph Sullivan
was charged with possession of heroin with intent to distribute, see 21 U.S.C. § 841(a)(1),
possession of a firearm by a convicted felon, see 18 U.S.C. § 922(g), and possession of a
firearm in furtherance of a drug-trafficking crime, see id. § 924(c)(1)(A)(I). A jury found him
guilty of all three charges. The district court sentenced him as a career offender under
U.S.S.G. § 4B1.1 to 400 months. He appealed, but his appointed counsel contends that the
appeal is frivolous and seeks permission to withdraw under Anders v. California, 386 U.S.
738 (1967). Sullivan opposes counsel’s motion. See C IR. R. 51(b). We confine our review to
No. 11-1431                                                                              Page 2

the issues identified by counsel in his facially adequate brief and by Sullivan in his
response. See United States v. Shuh, 289 F.3d 968, 973–74 (7th Cir. 2002).

        Counsel first considers whether Sullivan could challenge the sufficiency of the
evidence supporting his convictions, but properly concludes that any such challenge would
be frivolous. When reviewing a challenge to the sufficiency of the evidence, we view the
evidence in the light most favorable to the government and will uphold the jury’s verdict
so long as any rational jury could have found the defendant guilty beyond a reasonable
doubt. United States v. Aldridge, 642 F.3d 537, 544 (7th Cir. 2011). As counsel explains, the
evidence of guilt presented to the jury was strong. Physical evidence(the drugs and the
gun) was presented at trial, and the jury heard uncontradicted testimony by police officers
and Sullivan’s former girlfriend that the drugs and gun were his and that he possessed the
gun in furtherance of his drug operation. The officers testified that when they arrived at
Sullivan’s house to execute the search warrant (which they had obtained after receiving tips
and conducting surveillance), they saw Sullivan try to conceal a bag of heroin by throwing
it away. They recovered it and arrested him; he had nearly $1700 cash on his person despite
being unemployed. The officers also testified that in Sullivan’s bedroom they found more
money, heroin, and a handgun. Sullivan’s former girlfriend testified that Sullivan owned
these items and had purchased the gun (which was stolen) from a fellow drug dealer to
facilitate his drug operation. Given this evidence, we agree with counsel that it would be
frivolous for Sullivan to challenge the jury’s verdict.

       Counsel also evaluates whether Sullivan might argue that the district court erred in
denying his motion to suppress evidence obtained from his residence without an
evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978). To be granted a Franks
hearing, Sullivan had to make a preliminary showing that the police obtained the search
warrant by intentionally or recklessly including material false information in the officer’s
supporting affidavit. Id. at 155–56; United States v. McDuffy, 636 F.3d 361, 363 (7th Cir.1978).
Sullivan argued to the district court that the affidavit contained false information: the
affidavit stated that visitors to his house knocked on a door that he says was never used.
The district court brushed off this argument as immaterial, noting that other information in
the remainder of the affidavit was sufficient to support a finding of probable cause. In the
affidavit, the officer detailed other surveillance during which Sullivan briefly entered a
vehicle that later was found to contain heroin; he included information from confidential
informants about Sullivan’s drug dealing; and he described a trash pull outside Sullivan’s
house that turned up materials frequently used to dilute and package heroin for sale.
Because the court properly found that Sullivan failed to show that a material false
statement was included in the officer’s supporting affidavit, an appeal on this ground
would be frivolous.
No. 11-1431                                                                               Page 3

        Additionally counsel considers whether Sullivan could challenge the validity of his
400-month sentence but correctly concludes that this challenge would also be frivolous.
Based on Sullivan’s multiple convictions in this case, including one under 18 U.S.C. §
924(c), and at least two prior violent felony convictions (attempted murder and aggravated
battery), Sullivan’s guidelines range was properly calculated at 360 months to life under
U.S.S.G. 4B1.1(c)(3), and counsel has been unable to identify any basis to challenge the
presumption of reasonableness that applies to a within-guidelines sentence such as
Sullivan’s. See Rita v. United States, 551 U.S. 338, 341 (2007); United States v. Aslan, 644 F.3d
526, 531–32 (7th Cir. 2011). At sentencing, the district court weighed the appropriate factors
under 18 U.S.C. § 3553; it explained that the evidence in mitigation——Sullivan’s difficult
childhood, heart problems, and pursuit of a GED——did not counter the evidence of
Sullivan’s prior convictions for violent offenses, his recidivism, and his role as a gang
leader. An appeal challenging Sullivan’s sentence would be frivolous.

        Counsel also considers whether Sullivan could argue that he received ineffective
assistance of counsel, but counsel does not single out any aspect of his performance in the
district court as arguably ineffective. As a general rule, a claim of ineffective assistance is
best saved for collateral review where the record can be further 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). And if, as in this case, appellate counsel would have to argue that he was himself
ineffective, the claim is especially inappropriate on direct appeal. See United States v. Fuller,
312 f.3d 287, 291 (7th Cir. 2002).

        In response to counsel’s motion to withdraw, Sullivan insists without elaboration
that a portion of his former girlfriend’s testimony at trial lacked foundation and that this
provides a nonfrivolous ground for appeal. She testified that Sullivan knew she was selling
heroin on his behalf while he was hospitalized recovering from a heart attack. This
argument would be frivolous. Not only did Sullivan fail to object to this testimony at trial,
but the witness explained in detail how Sullivan knew about——and directed——her drug
dealing. Finally, Sullivan has also filed an amended response to counsel’s brief, but this
submission is untimely and will not be considered.

       Counsel’s motion is to withdraw is GRANTED and the appeal is DISMISSED.
