United States v. Luckabaugh, Edward , 231 F. App'x 503 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 10, 2007
Decided May 10, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 07-1238
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois
v.
No. 3:06CR30119-001 DRH
EDWARD SCOTT LUCKABAUGH,
Defendant-Appellant. David R. Herndon,
Judge.
ORDER
After Edward Luckabaugh pleaded guilty to one count of possessing child
pornography, see 18 U.S.C. § 2252A(a)(5), the probation office prepared a
presentence investigation report that discloses a distressing history of sexual
behavior directed at very young children. For nearly 20 years the 35-year-old
Luckabaugh had been sexually assaulting children; he had raped or molested no
fewer than four; his victims were between the ages of five and eight; he committed
the present offense while on probation from a 20-year sentence for sexually
assaulting a five-year-old girl; he began viewing child pornography “due to
involvement with associates attending his court-ordered sex offender classes”; and
he had amassed over 3,200 pornographic photographs of children, including images
of infants and bound and blindfolded toddlers. Based on his conduct and two prior
No. 07-1238 Page 2
state convictions for sexual assault of a child, the probation office calculated a
guidelines range of 168 to 210 months’ imprisonment and advised that Luckabaugh
was subject to a statutory maximum of 240 months. Luckabaugh did not object to
the information contained in the presentence report but instead argued for a
sentence at the low end of the guidelines range based primarily on his family
history of sexual abuse. The district court rejected his argument and sentenced
Luckabaugh to the statutory maximum term of imprisonment, supervised release
for life, a $1,000 fine, and a $100 special assessment.
Luckabaugh’s counsel filed a notice of appeal but now moves to withdraw
because she cannot discern a nonfrivolous basis for the appeal. See Anders v.
California, 386 U.S. 738 (1967). Luckabaugh has not accepted our invitation to
comment on counsel’s motion. See Cir. R. 51(b). Because counsel’s supporting brief
is facially adequate, we limit our review to the potential issue identified by counsel.
See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
In her brief, counsel first advises that Luckabaugh does not wish to rescind
his guilty plea. Thus counsel correctly avoids framing any potential issue about the
voluntariness of the plea or the adequacy of the plea colloquy. See United States v.
Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).
Counsel then considers whether Luckabaugh could challenge the
reasonableness of his above-range prison term. We review a district court’s decision
to sentence a defendant above the guidelines range only for reasonableness so long
as the court properly calculated the guidelines range, allowed the parties to draw
the court’s attention to any statutory factors that could warrant a sentence outside
the guidelines range, and adequately articulated its reasons for the sentence it
selected based upon the factors set forth in 18 U.S.C. § 3553(a). United States v.
Johnson, 471 F.3d 764, 764 (7th Cir. 2006). Here, our review of the record confirms
that the district court followed the proper procedure in sentencing Luckabaugh. It
is undisputed that the court properly calculated the guidelines range and allowed
argument by both parties concerning an appropriate sentence. The court explained,
however, that it chose the maximum sentence allowed by law (30 months above the
guidelines range) because, given Luckabaugh’s past conduct, the court believed that
he is unable to abstain from victimizing children and wished to protect potential
victims from him for as long as possible. See 18 U.S.C. § 3553(a)(1), (2)(c). The
court performed a thorough analysis of the circumstances of Luckabaugh’s case in
relation to the § 3553(a) factors, and it fully justified its decision to impose a longer
term of imprisonment than recommended by the guidelines. See United States v.
Johnson, 427 F.3d 423, 426-27 (7th Cir. 2005); United States v. Dean, 414 F.3d 725,
729 (7th Cir. 2005). We therefore agree with counsel that any challenge to the
reasonableness of Luckabaugh’s prison term would be frivolous.
No. 07-1238 Page 3
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.