O R D E R Marshall W. Duty pleaded guilty to one count of conspiring to manufacture v. Marshall W. Duty

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 14, 2018
Decided February 15, 2018
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17‐2798
O R D E R
Marshall W. Duty pleaded guilty to one count of conspiring to manufacture and
distribute methamphetamine and one count of distributing methamphetamine within
1,000 feet of public housing. See 21 U.S.C. §§ 841(a)(1), 846 & 860. Duty had sold crystal
methamphetamine twice to a confidential source and six times to an undercover officer.
He also had traded pseudoephedrine for methamphetamine and sometimes had cooked
methamphetamine himself. The district court calculated a guidelines imprisonment
range of 121 to 151 months and sentenced Duty to concurrent terms of 120 months on
each count. Among other things, the sentencing court noted Duty’s prior conviction and
48‐month imprisonment term for an earlier drug crime.
Duty filed a notice of appeal, but his appointed lawyer says the appeal is
frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 (1967). Duty
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MARSHALL W. DUTY,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 16‐CR‐40041‐JPG‐1
J. Phil Gilbert,
Judge.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 17‐2798 Page 2
has not accepted our invitation to respond to counsel’s motion. See C IR . R. 51(b).
Counsel has submitted a brief that explains the nature of the case and addresses the
issues that a case of this kind might be expected to involve. Because the analysis in the
brief appears to be thorough, we limit our review to the potential issues that counsel
discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States
v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel reports that he consulted with Duty and confirmed that he does not
want to withdraw his guilty plea; thus, counsel rightly refrains from further exploring
whether the plea was knowing and voluntary. See United States v. Konczak, 683 F.3d 348,
349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).
Counsel first considers whether Duty could challenge the reasonableness of the
below‐guidelines sentence. We agree with counsel that this challenge would be
frivolous. A below‐guidelines sentence is presumed not to be unreasonably high,
United States v. White, 868 F.3d 598, 603 (7th Cir. 2017), and counsel finds nothing in the
record to rebut that presumption here. Nor does counsel identify any plausible
challenge to the guidelines calculation, which was uncontested in the district court.
Counsel contemplates whether the district court adequately considered Duty’s
arguments in mitigation. But the district court acknowledged Duty’s principal
mitigating factor—that he suffers from various health problems such as emphysema
and coronary artery disease—and observed that Duty’s health problems did not deter
him from committing these offenses, and further opined that they did not otherwise
warrant a significant downward variance from the guidelines range.
Duty’s attorney next asks whether a claim of ineffective assistance of counsel
would be appropriate, but properly recognizes that claims of ineffective assistance are
best reserved for a collateral proceeding where an evidentiary foundation can be
developed—all the more so when, as here, appellate counsel is the very attorney who
represented the defendant at trial. See Massaro v. United States, 538 U.S. 500, 504–05
(2003); United States v. Flores, 739 F.3d 337, 340–41 (7th Cir. 2014).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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