United States v. Michael Shaffier, Jr. ( 2018 )

NONPRECEDENTIAL DISPOSITION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 May 11, 2018
Decided May 11, 2018
Before
DIANE P. WOOD, Chief Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 17-2450
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 4:16-cr-40075-001
MICHAEL R. SHAFFIER, JR., Sara Darrow,
Defendant-Appellant. Judge.
ORDER
Michael Shaffier pleaded guilty to possessing and distributing child
pornography. See 18 U.S.C. § 2252A(a)(2)(A), (5)(B). The district court sentenced him to
concurrent nine-year terms of imprisonment for both counts. Shaffier filed a notice of
appeal, but his appointed attorney asserts that the appeal is frivolous and seeks to
withdraw under Anders v. California, 386 U.S. 738 (1967). Shaffier has filed two
responses opposing the motion. See CIR. R. 51(b). Because counsel’s brief explains the
nature of the case and appears to address thoroughly the issues that an appeal of this
kind might involve, we limit our review to the subjects that he discusses and those that
Shaffier raises. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
No. 17-2450 Page 2
Counsel says that he consulted with Shaffier, who told counsel that he does not
wish to withdraw his pleas, but in his responses Shaffier alleges that his pleas were
coerced. We will, therefore, consider whether he could present on appeal a non-
frivolous argument to withdraw his plea. See United States v. Knox, 287 F.3d 667, 670–71
(7th Cir. 2002). Shaffier did not move to withdraw his plea in the district court, so we
would review the acceptance of his plea only for plain error. See United States
v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013).
An argument that the district court plainly erred in accepting Schaffier’s plea
would be pointless because the court complied with Federal Rule of Criminal
Procedure 11. See Davenport, 719 F.3d at 618. In particular, the district court asked
Shaffier whether anyone had forced him to plead guilty or offered him any promises in
order to get him to plead guilty; under oath he said no and confirmed that he was
pleading guilty of his own free will. Shaffier points to no evidence that undermines
these sworn statements, which are presumed true. See United States v. Graf, 827 F.3d 581,
584 (7th Cir. 2016).
Counsel principally considers whether Shaffier could contest his sentence and
rightly concludes that there is no non-frivolous argument available to him. The district
court properly calculated Shaffier’s Guidelines imprisonment range, based on an
offense level of 34 and a criminal history category of I, as 151 to 188 months. His
108-month sentence is below this range and therefore presumed reasonable. See United
States v. Klug, 670 F.3d 797, 800 (7th Cir. 2012).
Shaffier suggests that counsel could plausibly attempt to rebut this presumption
by contending that the district court relied too heavily on general deterrence in
choosing the sentence. But the court properly considered all of the 18 U.S.C. § 3553(a)
factors, including Shaffier’s personal history (a dysfunctional childhood and a
supportive family in his adult life), the seriousness of the offense (including the
extremely graphic nature of the images he possessed), and the need to deter others from
engaging in the marketplace for child pornography. See 18 U.S.C. § 3553(a)(1),
(a)(2)(A)–(B). And general deterrence, which the district court permissibly emphasized,
has been consistently recognized as a valid concern of criminal sentencing. See United
States v. Presley, 790 F.3d 699, 703 (7th Cir. 2015); United States v. Molton, 743 F.3d 479,
486 & n.3 (7th Cir. 2014) (collecting cases).
Shaffier next contends that counsel could plausibly argue that his sentence is
unreasonable for another reason: that the child-pornography Guidelines are flawed and
No. 17-2450 Page 3
double count his crimes. These arguments, however, would go nowhere on appeal.
District courts are permitted to disagree with the sentencing policies advanced by the
Guidelines, but they are not required to do so. See United States v. Oberg, 877 F.3d 261,
263–64 (7th Cir. 2017); United States v. Hancock, 825 F.3d 340, 344 (7th Cir. 2016). And we
have rejected the argument that the Guidelines’ enhancements for child pornography
improperly double count conduct. See United States v. McLaughlin, 760 F.3d 699, 704
(7th Cir. 2014). In any case the district court actually agreed with Shaffier that in this
case the computer-use and distribution enhancements overstated his offense and
reduced the sentence accordingly.
We also agree with counsel that it would be pointless for Shaffier to argue that
the district court procedurally erred at sentencing by not adequately addressing his
mitigation arguments. In the district court Schaffier contended that he had served in the
military, has a strong familial support network, and is a first-time offender. The court
considered his arguments that these factors favored a lower sentence; it rejected some of
them and accepted others. That is sufficient. See, e.g., United States v. Ramirez-Fuentes,
703 F.3d 1038, 1048 (7th Cir. 2013). And Shaffier’s attorney told the court that it had
adequately addressed his arguments, so Shaffier waived any potential error anyway,
see United States v. Donelli, 747 F.3d 936, 941 (7th Cir. 2014).
Counsel and Shaffier next consider whether he could argue that the district court
erred in finding at sentencing that Shaffier had used child pornography for over twenty
years. Because Shaffier did not object to the court’s use of the information at sentencing,
we would review that factual finding for plain error. See United States v. Borostowski,
775 F.3d 851, 865–66 (7th Cir. 2014). The expert whose testimony and report Shaffier
presented, and on whom the district court relied in its finding, is vague about the type
of pornography that Shaffier viewed over twenty years ago. Shaffier says it was lawful
adult pornography, not unlawful child pornography, as the court concluded. But, in
response to the government’s questions, the expert clarified at the sentencing hearing
that Shaffier had told the expert about “viewing all manner of pornography,” which the
expert thought included child pornography. With that concession in the record, we
agree with counsel that it would be futile for Shaffier to argue that it was “clear and
obvious” that the court should not have adopted the same understanding of the facts as
Shaffier’s own witness. Id.
Shaffier proposes that counsel raise other arguments, but they are all frivolous.
First, he contends that several statements in his presentence investigation report reflect
poorly on him or are inaccurate. But these points were not challenged in the district
No. 17-2450 Page 4
court, so he has either waived those objections or forfeited them—the latter meaning
that we would review the court’s reliance on them for plain error. See United States
v. Jenkins, 772 F.3d 1092, 1096–97 (7th Cir. 2014). But Shaffier could not meet that high
standard. He complains that the PSR says that he saw a pornographic film as a child in
Virginia instead of Maryland and that Shaffier’s parents remarried younger people after
their divorce. But these statements were not material to the sentencing court’s
decision-making, so they do not affect his substantial rights. Shaffier also complains that
the probation office was unable to verify other facts in the PSR that he believes favored
him. But an inability to verify facts that, in this case, were not material to sentencing is
not an error.
Second, Shaffier maintains that the judge, as a mother and former prosecutor,
was biased against him and that her questions to his expert reflected this bias. But the
judge was not previously involved in his case while a prosecutor, and her maternity
and questions did not themselves show bias. See 28 U.S.C. § 455(a), (b)(3); United States
v. Dorsey, 829 F.3d 831, 836 (7th Cir. 2016). Judges have great latitude while examining
witnesses at sentencing, and the questions here did not approach the boundaries of
permissible questioning. See United States v. Modjewski, 783 F.3d 645, 650–51 (7th Cir.
2015). For example, Shaffier says that the judge’s question about him organizing his
pornography by category was improper. That question was based on the judge’s
misreading of an ambiguous paragraph of the PSR, not any bias; once the government
clarified the matter, the judge withdrew the question.
Third, Shaffier says that the forfeiture of his smart phone and the $16,000 in
restitution he owes to two victims are improper. But Shaffier consented to the forfeiture
and conceded that the phone’s SD card contained seven child pornography videos. It
would, thus, be frivolous for Shaffier to contend now that the phone was not “used to
commit or to promote the commission” of his offense. 18 U.S.C. § 2253(a)(3). Similarly,
the government and Shaffier jointly recommended the restitution amount that the court
ordered. A knowing waiver extinguishes any error. See, e.g., United States v. Barnes,
883 F.3d 955, 957 (7th Cir. 2018). In any event we have found that a similar amount of
restitution ordered paid to one of the same victims was not an abuse of discretion.
See United States v. Sainz, 827 F.3d 602, 605 (7th Cir. 2016).
Fourth, Shaffier proposes that counsel challenge his pretrial detention and
aspects of his pretrial proceedings, but these challenges would be frivolous. The validity
of his pretrial detention became moot once he pleaded guilty. See Murphy v. Hunt,
455 U.S. 478, 481–82 (1982). Schaffier complains that during pretrial conferences he was
No. 17-2450 Page 5
shackled and made to wear a suicide-prevention suit, which he says impeded him from
muting the court’s microphone to speak to counsel privately. But nothing stopped him
from asking counsel to mute the microphone, he did not object to the suit and shackles,
and nothing in the record suggests that this procedure affected his conviction or
sentence. Nor could he plausibly argue that this procedure was an abuse of discretion,
given that he had attempted suicide just before his arrest. See United States v. Bell,
819 F.3d 310, 321–22 (7th Cir. 2016) (deferring to district court to determine whether a
“special need” justifies shackling during jury trial), cert. denied, 138 S. Ct. 283 (2017).
Finally, Shaffier raises in his responses claims that are better addressed in other
proceedings. He alleges that jail guards mistreated him and denied him medical
treatment in pretrial detention. Those allegations are more appropriate for a civil
lawsuit than a direct appeal from his criminal conviction. Additionally, to the extent
that Shaffier wants to argue that his trial counsel was ineffective, such an argument is
best saved for collateral attack. See Massaro v. United States, 538 U.S. 500, 504–05 (2003);
United States v. Flores, 739 F.3d 337, 341–42 (7th Cir. 2014).
We GRANT the motion to withdraw and DISMISS the appeal.