United States v. Michael Faucett , 485 F. App'x 834 ( 2012 )

NONPRECEDENTIAL DISPOSITION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 August 20, 2012
Decided August 22, 2012
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12-1727
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:11-CR-00193-001
MICHAEL D. FAUCETT,
Defendant-Appellant. Tanya Walton Pratt,
Judge.
ORDER
Michael Faucett, on two separate occasions, took pornographic photos of his
five-year-old granddaughter. He also stored pornography depicting other children on his
computer. Faucett was arrested and pleaded guilty to two counts of producing child
pornography and one count of possessing child pornography. See 18 U.S.C. §§ 2251(a),
2252(a)(4)(B). The district court sentenced him to 30 years’ imprisonment, substantially
below his guidelines range. He filed a notice of appeal, but his appointed lawyer believes
that the appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738
(1967). Faucett has not responded to counsel’s submission, see CIR. R. 51(b), and we limit
our review to the potential issues counsel identified in his facially adequate brief, United
States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
No. 12-1727 Page 2
Counsel states that Faucett does not wish to withdraw his plea, but we see no
indication in counsel’s submission that he ever discussed this with Faucett. See United States
v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir.
2002). But this misstep does not require that we reject the Anders submission. First, Faucett
filed a notice of appeal from only his sentence, and the attached docketing statement
invokes only our sentencing jurisdiction, see 18 U.S.C. § 3742(a), so any challenge to the
voluntariness of his plea would arguably be outside the scope of his appeal. In any event,
the transcript of Faucett’s plea colloquy demonstrates that the district court substantially
complied with the requirements of Federal Rule of Criminal Procedure 11 and ensured that
the plea was voluntary. See United States v. Blalock, 321 F.3d 686, 688 (7th Cir. 2003). Any
challenge to the plea would be frivolous. Konczak, 683 F.3d at 349.
Counsel does consider whether Faucett could argue that his sentence was
procedurally flawed and properly concludes that such an argument would be frivolous.
The district court correctly calculated Faucett’s guidelines range (life, based on his total
offense level of 45 and criminal-history category of II), did not regard the guidelines as
mandatory, and did not rely on clearly erroneous facts. See Gall v. United States, 552 U.S. 38,
51 (2007); United States v. Turner, 569 F.3d 637, 640 (7th Cir. 2009). Thus, we see no basis for
a procedural challenge.
Counsel considers also whether Faucett could challenge his sentence as
substantively unreasonable. But Faucett’s below-guidelines sentence receives a
presumption of reasonableness, and, like counsel, we see no basis for challenging that
presumption. United States v. Martinez, 650 F.3d 667, 673 (7th Cir. 2011); United States v. Noel,
581 F.3d 490, 500 (7th Cir. 2009) (concluding that 80-year sentence for producing child
pornography was reasonable). The district court adequately considered the factors in
18 U.S.C. § 3553(a) and emphasized two aspects of Faucett’s offenses that made them
particularly serious. Faucett had been diagnosed with herpes and risked transmitting that
disease to his granddaughter by engaging in sexual contact with her, and Faucett had
victimized a child who was helpless and vulnerable—his granddaughter, who had been
sleeping when the photographs were taken. See United States v. Newsom, 402 F.3d 780, 785
(7th Cir. 2005).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.