United States v. Wesaw , 251 F. App'x 550 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 18, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
__________________________
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 07-8024
v. (D.Ct. No. 06-CR-189–ABJ)
(D . W yo.)
TIM OTHY W ESAW ,
Defendant-Appellant.
____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Timothy W esaw pled guilty to one count of possession of
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
material containing an image of child pornography transported in interstate
commerce by any means, including a computer, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). The district court sentenced M r. W esaw to the low
end of the advisory United States Sentencing Guidelines (“Guidelines” or
“U.S.S.G.”) range of forty-one to fifty-one months imprisonment, as well as five
years supervised release. W hile M r. W esaw appeals his conviction and sentence,
his attorney has filed an Anders brief and a motion to withdraw as counsel. See
Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set forth
hereafter, w e grant counsel’s motion to withdraw and dismiss this appeal.
I. Background
Pursuant to a plea agreement, M r. W esaw pled guilty to a one-count
indictment for possessing child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). The district court held a plea hearing, during which
it thoroughly and comprehensively questioned M r. W esaw about his guilty plea.
In response, M r. W esaw explicitly confirmed he had read the plea agreement,
discussed it w ith counsel, and signed it voluntarily and of his own free will. H e
also stated he understood the offense for which he was charged, the maximum
sentence and other possible sentencing ramifications related to the offense, 1 and
1
Because the offense occurred prior to enactment of the Prosecutorial
Remedies and Other Tools to end the Exploitation of Children Today Act of 2003
(continued...)
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the rights he was giving up by pleading guilty, including his right to a speedy
public jury trial. He further admitted he was guilty of possessing child
pornography by downloading images to his computer by means of interstate
telephone lines.
After the district court accepted M r. W esaw’s guilty plea, the probation
officer prepared a presentence report calculating his sentence under the applicable
Guidelines. The presentence report set his base offense level at seventeen,
pursuant to the applicable 2003 version of U.S.S.G. § 2G2.2(a), and increased his
base level: 1) two levels pursuant to § 2G2.2(b)(1) because the child pornography
involved prepubescent minors under age twelve; 2) four levels under
§ 2G2.2(b)(3) given the images depicted sadistic or masochistic conduct; and 3)
two levels under § 2G2.2(b)(5) because his offense involved the use of a
computer. It also reduced the offense level by three levels for acceptance of
responsibility, resulting in a total offense level of twenty-two. This, together with
a criminal history category of I, resulted in an advisory sentencing range of forty-
one to fifty-one months imprisonment.
1
(...continued)
(PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650 (codified in scattered sections
of 18 and 42 U.S.C.), its provisions did not apply to M r. W esaw, resulting in a
statutory maximum term of only five years imprisonment under 18 U.S.C.
§ 2252A (2003).
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Although M r. W esaw filed miscellaneous objections to some of the factual
findings in the presentence report, those objections w ere withdrawn prior to
sentencing. However, M r. W esaw did reserve the right to raise issues related to
receiving a reasonable sentence under the sentencing factors in 18 U.S.C.
§ 3553(a).
During the sentencing hearing, discussion occurred concerning M r.
W esaw’s mental health, including prior alcohol abuse, depression, and treatment
for bipolar disorder. In addition, three family members testified on M r. W esaw’s
behalf. Following their testimony, M r. W esaw’s counsel conceded she had found
no issue for a departure but asked the district court to consider a variance under
the § 3553(a) factors in conjunction with: 1) M r. W esaw’s exemplary conduct
during his home confinement in which he voluntarily placed restrictions on
himself; 2) his alcoholism and prior treatment for bipolar disorder; 3) the fact he
raised his two sons on his own; and 4) the fact his last criminal offense occurred
seven years prior to the instant offense. M r. W esaw then testified on his own
behalf, articulating his remorse for his actions and asking for supervised release
rather than a term of imprisonment. In response, the government requested a
sentence within the advisory Guidelines range of forty-one to fifty-one months
imprisonment, noting the seriousness of the offense, given M r. W esaw
downloaded over twenty movie files and eighty-seven still or JPEG images
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involving child pornography, and pointing out his need for vocational training and
mental health and drug counseling.
In sentencing M r. W esaw, the district court explicitly stated it considered
all the factors enumerated in 18 U.S.C. § 3553(a), together with the circumstances
presented, including M r. W esaw’s alcoholism; pornographic addiction tendencies,
including the many, many hours it took to download the materials found on his
computer; his honesty, acceptance of responsibility, admitted shame, and self-
imposed sequestration after the instant offense; his difficult family circumstances
growing up and in raising his children on his own; the discrimination he
experienced as a Native American; and his need for mental health treatment.
Based on these considerations, the district court determined a sentence at the low
end of the advisory sentencing range was appropriate and reasonable and
sentenced M r. W esaw to forty-one months imprisonment and five years
supervised release.
After M r. W esaw filed a timely notice of appeal, his appointed counsel
filed an Anders appeal brief, explaining a review of the record reveals no
nonfrivolous issues exist to support an appeal in this case and moving for an order
permitting withdrawal as counsel. See Anders, 386 U.S. at 744. In support,
counsel suggests no irregularities occurred in the guilty plea or sentencing and
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points out M r. W esaw was fully advised and understood his rights and the
ramifications in pleading guilty, and the district court, after considering the
§ 3553(a) factors and properly calculating the advisory Guidelines range,
sentenced him at the low end of that range to forty-one months imprisonment.
Pursuant to Anders, this court gave M r. W esaw an opportunity to respond to his
counsel’s Anders brief. Id. However, M r. W esaw failed to file a response.
II. Discussion
As required by Anders, we have conducted a full examination of the record
before us. See 386 U.S. at 744. Our independent review of the plea transcript
supports beyond any doubt our conclusion M r. W esaw knowingly, intelligently,
and voluntarily entered his plea of guilty. Thus, based on the record before us,
we cannot say M r. W esaw’s guilty plea was involuntary for the purpose of
challenging his conviction. As to his sentence of forty-one months imprisonment
and five years supervised release, we review for reasonableness the sentence’s
length, as guided by the factors in 18 U.S.C. § 3553(a). See United States v.
Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). Having made such a
review, we find no nonfrivolous basis for challenging the sentence imposed. The
district court in this case explicitly considered the factors in § 3553(a), and a
presumption of reasonableness attaches to a sentence, like here, which is w ithin
the correctly-calculated Guidelines range, which M r. W esaw has not rebutted.
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See id. at 1053-55.
III. Conclusion
For these reasons, no meritorious appellate issue exists. Accordingly, w e
G R A N T counsel’s motion to withdraw and DISM ISS M r. W esaw’s appeal.
Entered by the C ourt:
W ADE BRO RBY
United States Circuit Judge
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