                              UNPUBLISHED ORDER
                           Not to be cited per Circuit Rule 53



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

                             Submitted July 14, 2006
                             Decided August 3, 2006

                                       Before

                   Hon. RICHARD D. CUDAHY, Circuit Judge

                   Hon. MICHAEL S. KANNE, Circuit Judge

                   Hon. DIANE S. SYKES, Circuit Judge

No. 05-4017

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

      v.                                    4:04CR40023-001-JPG

GEORGE RUSH, III,                           J. Phil Gilbert,
    Defendant-Appellant.                    Judge.


                                       ORDER

       George Rush pleaded guilty to three counts of possession with intent to
distribute crack cocaine. See 21 U.S.C. § 841(a)(1). He was originally sentenced in
September 2004, but we vacated the judgment in light of United States v. Booker,
543 U.S. 220 (2005), and remanded for resentencing. See United States v. Rush,
No. 04-3547 (7th Cir. Apr. 8, 2005). In resentencing Rush in October 2005, the
district court adopted the same guidelines calculations and once again imposed
concurrent terms of 235 months of imprisonment and six years of supervised
release. Rush filed another appeal, but his appointed lawyer has moved to
withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot
discern a nonfrivolous argument on appeal. We invited Rush to respond, see Cir. R.
51(b), but has not done so.
No. 05-4017                                                                Page 2


        We note that counsel does not, as he is supposed to, explain why the potential
issue he mentions in his Anders brief is frivolous, United States v. Edwards, 777
F.2d 364, 366 (7th Cir. 1985) (per curiam). Instead, he has argued that the
identified potential issue is meritorious. This is more than an error of form since it
would normally tend to defeat rather than support a motion to withdraw. However,
we conclude that the Anders brief marshals the arguments relating to the
reasonableness of the sentences and provides a sufficient basis to evaluate the
frivolousness of the issue. In addition, counsel does make a general statement in
his motion to withdraw that he can find no nonfrivolous issues on appeal. Therefore
it is clear that counsel intended his brief to be an Anders submission, and we will
consider it as such.

        Our earlier remand was premised solely on Booker, so any issues concerning
Rush’s guilty pleas or the reinstated guidelines calculations were beyond the scope
of the remand and thus are also beyond the scope of this appeal. See United States
v. Husband, 312 F.3d 247, 250 (7th Cir. 2002) (explaining that issues decided in
initial appeal, as well as issues that could have been raised but were not, are
beyond scope of remand); United States v. Sumner, 325 F.3d 884, 891–92 (7th Cir.
2003) (same). It is understandable, then, that the only potential issue counsel has
identified is the possibility that Rush could challenge his prison terms as
unreasonable.

       In any event, the prison terms are presumptively reasonable because they
fall within the guidelines range, see United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005), leaving counsel to evaluate two possible reasons why the
presumption should give way. First he wonders whether Rush might argue that
designating him as a career offender under U.S.S.G. § 4B1.1 (which the district
court did) created the kind of “unwarranted sentence disparity” that 18 U.S.C.
§ 3553(a)(6) discourages; counsel observes that other dealers lacking Rush’s
extensive criminal history would have faced much shorter imprisonment ranges for
selling the same small amounts of crack. But as we have said, differences in
sentences that result from correct applications of the guidelines are not
“unwarranted.” See United States v. Miller, 450 F.3d 270, 275–76 (7th Cir. 2006);
United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006), petition for cert. filed,
74 U.S.L.W. 3629 (U.S. Apr. 27, 2006) (No. 05-1379). Second, counsel considers
whether Rush could contend that his overall sentence of 235 months is
unreasonable when compared to the short time he served for his prior convictions,
yet the very fact that short stints in jail had no deterrent effect is what led the
district court to conclude that a long time in prison was necessary. Neither reason
suggested by counsel would rebut the presumption arising from a sentence within
the guidelines range, and thus the reasonableness challenge that counsel envisions
would be frivolous.
No. 05-4017                                                    Page 3


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