United States v. Shane Elder ( 2016 )

NONPRECEDENTIAL DISPOSITION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 January 19, 2016
Decided January 19, 2016
Before
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15-1534
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 13-10108-001
SHANE L. ELDER, Joe Billy McDade,
Defendant-Appellant. Judge.
ORDER
After his wife found several files of child pornography on his laptop and turned
him into the police, Shane Elder entered open guilty pleas to two counts of distributing
pornography. See 18 U.S.C. §§ 2252A(a)(2), 2256(8)(A)–(B). The district court sentenced
him below the guidelines range to 120 months’ imprisonment on each count to be
served concurrently. Elder filed a notice of appeal, but his lawyer has concluded that
the appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738, 744
(1967). Counsel has submitted a brief that explains the nature of the case and addresses
the issues that an appeal of this kind might be expected to involve; Elder declined to
respond to counsel’s motion. See CIR. R. 51(b). Because counsel’s analysis appears to be
thorough, we limit our review to the subjects that counsel has discussed. See United
No. 15-1534 Page 2
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553
(7th Cir. 1996).
Counsel first considers whether Elder could challenge the adequacy of the plea
colloquy or the voluntariness of his guilty pleas. But counsel neglects to say whether
Elder wants his guilty pleas set aside. 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). Regardless, our
own review of the record persuades us that a challenge would be frivolous. See United
States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013); Konczak, 683 F.3d at 349. During the
plea colloquy the district court substantially complied with Federal Rule of Criminal
Procedure 11(b), and substantial compliance typically is enough to shield a guilty plea
from challenge on direct appeal. See United States v. Zitt, 714 F.3d 511, 515 (7th Cir.
2013); United States v. Blalock, 321 F.3d 686, 688–89 (7th Cir. 2003); United States v.
Akinsola, 105 F.3d 331, 334 (7th Cir. 1997). The court advised Elder of his constitutional
rights, the charges against him, the maximum penalties, the role of the sentencing
guidelines, and its discretion in applying the guidelines. FED. R. CRIM. P. 11(b)(1). The
court also ensured that his pleas were made voluntarily and supported by a satisfactory
factual basis. FED. R. CRIM. P. 11(b)(2), (3). The court neglected to inform Elder that he
had the right to persist in his plea of not guilty, FED. R. CRIM. P. 11(b)(1)(B), but he must
have known as much because he already had pleaded not guilty at arraignment and the
very purpose of the colloquy was to change that plea. See Knox, 287 F.3d at 670. The
court’s omission of any reference to its authority to order restitution, FED. R. CRIM. P.
11(b)(1)(K), was also inconsequential because restitution was not imposed. See United
States v. Fox, 941 F.3d 480, 484–85 (7th Cir. 1991).
Counsel also considers challenging Elder’s sentence, but rightly concludes that
doing so would be frivolous. Elder’s 10-year sentence fell below the 20-year statutory
maximum. See 18 U.S.C. § 2252A(b)(1). Elder also waived any challenge to the
calculation of his guideline range when he confirmed at sentencing that he read the
presentence report and had no objections. See United States v. Jones, 635 F.3d 909, 915 n.6
(7th Cir. 2011); United States v. Brodie, 507 F.3d 527, 531–32 (7th Cir. 2007). Counsel
further points out that the court adequately addressed Elder’s mitigating arguments.
See United States v. Velazquez, 772 F.3d 788, 800–01 (7th Cir. 2014); United States v.
Stinefast, 724 F.3d 925, 931 (7th Cir. 2013). His below-guidelines sentence is also
presumptively reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007); United States
v. Purham, 795 F.3d 761, 765 (7th Cir. 2015). Counsel identified no reason to disturb that
presumption, nor can we. The district court adequately considered the sentencing
factors by discussing Elder’s history—his dysfunctional upbringing and lack of prior
No. 15-1534 Page 3
child-sex offenses—and characteristics—his emotional problems that required
psychotropic medications. See 18 U.S.C. § 3553(a)(1).
Counsel does not mention one of Elder’s standard conditions of supervised
release—his being barred from leaving the judicial district without permission—that we
have criticized as vague because it lacks a scienter requirement. See United States v.
Kappes, 782 F.3d 828, 849–50 (7th Cir. 2015). But we have no reason to believe that Elder
wants to challenge this condition because counsel did not identify it as a potential issue
and Elder did not respond to the Anders brief. See United States v. Bryant, 754 F.3d 443,
447 (7th Cir. 2014). Moreover, even if Elder finds this condition to be problematic upon
serving his supervised-release term, he would be free to seek modification under
18 U.S.C. § 3583(e)(2).
Finally, counsel properly concludes that any claim of ineffective assistance of
counsel is best saved for collateral review, where an evidentiary foundation can be
developed. See Massaro v. United States, 538 U.S. 500, 504–05 (2003); United States v.
Flores, 739 F.3d 337, 341 (7th Cir. 2014).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.