                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




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

                           Submitted February 17, 2006
                            Decided February 21, 2006

                                      Before

                     Hon. WILLIAM J. BAUER, Circuit Judge

                     Hon. FRANK H. EASTERBROOK, Circuit Judge

                     Hon. TERENCE T. EVANS, Circuit Judge

No. 03-4101
                                         Appeal from the United States District
UNITED STATES OF AMERICA,                Court for the Central District of Illinois
    Plaintiff-Appellee,

      v.                                 No. 02-CR-30092-001

JAMES L. MILLER,                         Richard Mills,
    Defendant-Appellant.                 Judge.


                                      ORDER

       James L. Miller pleaded guilty to one count of manufacturing
methamphetamine. See 21 U.S.C. § 841(1)(a). The parties stipulated in their plea
agreement that the top end of the guideline imprisonment range would be 105
months based on a projected total offense level of 23 and a criminal history category
of V. That agreement also includes an appeal waiver, although the waiver is
limited and expressly allows Miller to base an appeal on "any finding that his
sentencing guideline range is higher than as stipulated." As it turned out the
district court did reject the stipulation after the probation officer discovered a
conviction for aggravated battery that was unknown to Miller's counsel and the
government; this conviction made Miller a career offender, which in turn increased
his total offense level to 29 and his criminal history category to VI. See U.S.S.G.
No. 03-4101                                                             Page 2

§ 4B1.1. As a result the court calculated a guideline range of 151 to 188 months,
though it imposed a term of just 135 months after the government moved for a
below-range sentence to reflect Miller's substantial assistance. See U.S.S.G.
§ 5K1.1. The court also imposed three years of supervised release and a $100
special assessment. Miller appealed.

        Miller was sentenced in 2003. In July 2004, just two days before we decided
United States v. Booker, 375 F.3d 508 (7th Cir. 2004), aff'd, 543 U.S. 220 (2005),
Miller's appointed counsel moved to withdraw under Anders v. California, 386 U.S.
738 (1967), because he could not discern a nonfrivolous issue for appeal. We held
counsel's motion in abeyance until after the Supreme Court issued its Booker
decision and then directed counsel to address the impact of that case on his Anders
submission. Counsel responded by withdrawing the motion and filing a merits brief
arguing for a limited remand under United States v. Paladino, 401 F.3d 471 (7th
Cir.), cert. denied, 126 S. Ct. 106 (2005). At this point the government filed a
motion to dismiss arguing that the appeal waiver in Miller's plea agreement
precluded him from raising a Booker challenge. Counsel answered that the
government was correct, and that Miller's appeal should be dismissed, but Miller
would not consent to a voluntary dismissal. We then ordered Miller's counsel to
supplement his response with the equivalent of an Anders brief, see United States v.
Mason, 343 F.3d 893 (7th Cir. 2003), which is now before us. We invited Miller to
respond per Circuit Rule 51(b), but he has not done so.

       Since counsel's most recent submission is facially adequate, we review only
those potential issues he identifies. See United States v. Tabb, 125 F.3d 583, 584
(7th Cir. 1997) (per curiam). Counsel first considers whether Miller could challenge
the appeal waiver. Miller, though, has never said that he wants his guilty plea set
aside, see United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002), so it follows
that he is bound by his appeal waiver, see United States v. Whitlow, 287 F.3d 638,
640 (7th Cir. 2002) (appeal waiver "stands or falls" with the plea); United States v.
Behrman, 235 F.3d 1049, 1051 (7th Cir. 2000); United States v. Wenger, 58 F.3d
280, 282 (7th Cir. 1995).

       And since the waiver is binding, counsel correctly asserts that a Booker
challenge to Miller's sentence would be frivolous. An appeal waiver is enforceable
against a Booker challenge even if the waiver was executed before Booker was
decided unless the waiver incorporates an exception allowing for arguments based
on future changes in the law. See United States v. Lockwood, 416 F.3d 604, 608 (7th
Cir. 2005); United States v. Bownes, 405 F.3d 634, 636-37 (7th Cir.), cert. denied,
126 S. Ct. 320 (2005). Miller's waiver has no such exception.
       Counsel next considers whether Miller could challenge the application of the
career-offender guideline. The appeal waiver would not preclude this potential
argument since the waiver has an explicit exception allowing Miller to contest a
No. 03-4101                                                              Page 3

determination that his guideline range was higher than that stipulated in the plea
agreement. But an argument about § 4B1.1 would still be frivolous. Miller had two
felony convictions for aggravated battery, which is a crime of violence, see United
States v. Thomas, 159 F.3d 296, 299 (7th Cir. 1998), and his current conviction is for
a controlled substance offense, see U.S.S.G § 4B1.1(a). Since the default statutory
maximum for manufacturing any amount of methamphetamine is 20 years, see 21
U.S.C. § 841(b)(1)(C); United States v. Bequette, 309 F.3d 448, 450 n.1 (7th Cir.
2002), Miller's base offense level was 32 (which the district court reduced to 29 after
giving him a three-level reduction for acceptance of responsibility), and his criminal
history category was VI, see U.S.S.G § 4.B1.1(b). The district court's range of 151 to
188 months was thus correct. U.S.S.G. Ch. 5, Pt. A.

       Finally counsel considers whether Miller could argue that his decision to
plead guilty was the result of ineffective assistance of counsel. We have frequently
said that a claim of ineffective assistance ordinarily should be raised in a collateral
proceeding under 28 U.S.C. § 2255 rather than on direct appeal. See, e.g.,United
States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003). This case is no different since the
possible deficiencies, e.g., abandonment of Miller's motion to suppress, could not be
established without further record development. Miller's plea agreement also
includes a waiver of postconviction remedies that may prove an obstacle, however, if
he attempts to take this route.

      For the foregoing reasons we GRANT counsel's motion and DISMISS the
appeal.
