United States v. Adams, Anthony , 256 F. App'x 796 ( 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NONPRECEDENTIAL DISPOSITION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 November 7, 2007*
Decided November 9, 2007
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 07-1560
UNTIED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of
Illinois
v.
No. 06-30033-001
ANTHONY ADAMS,
Defendant-Appellant. Jeanne E. Scott,
Judge.
ORDER
Anthony Adams pleaded guilty, without a plea agreement, to three counts of
receiving, transporting, and possessing child pornography. See 18 U.S.C.
§ 2252A(a)(2)(A), (a)(1), (a)(5)(B). The court calculated a guidelines imprisonment
range of 210 to 262 months, and sentenced Adams to 236 months’ imprisonment
each on Counts 1 and 2, and 120 months on Count 3, all of which to run
concurrently. Adams’s sentence was just shy of the 20-year statutory maximum.
18 U.S.C. § 2252A(b)(1). The court also gave Adams a lifetime sentence of
supervised release. Adams filed a timely notice of appeal, but his counsel now
moves to withdraw because he cannot discern a nonfrivolous basis for appeal. See
*
After an examination of the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).
No. 07-1560 Page 2
Anders v. California, 386 U.S. 738, 744 (1967). Although we invited Adams to
respond to counsel’s motion, he has not done so. See Cir. R. 51(b). Counsel’s
exemplary supporting brief is more than adequate, and we limit our review to the
potential issues identified by counsel. See United States v. Schuh, 289 F.3d 968,
973-74 (7th Cir. 2002).
Adams’s legal troubles began when an undercover FBI agent connected to the
internet, signed on to a file-sharing program, and downloaded photographs and
videos of child pornography from an IP address registered to Adams. After
searching Adams’s house, agents seized hard-copy images and two computers
containing hundreds of videos and photographs of child pornography, some
depicting bondage or sadomasochistic activity and others involving adults and
minors engaged in sexual activity with children no more than two years old.
Counsel first considers whether Adams might argue that the magistrate
judge did not fully comply with Federal Rule of Criminal Procedure 11(b) to
determine whether Adams’s guilty pleas were knowing and voluntary. Counsel
properly addresses this argument because Adams now wants to withdraw his guilty
pleas. United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Adams did not
move to withdraw his pleas in the district court, and thus our review would be for
plain error only. See United States v. Vonn, 535 U.S. 55, 59 (2002); United States v.
Villarreal-Tamayo, 467 F.3d 630, 632 (7th Cir. 2006). A guilty plea must be
knowingly and voluntarily given, United States v. Kelly, 337 F.3d 897, 904 (7th Cir.
2003), and a district court’s “substantial compliance” with Rule 11 ensures the
voluntariness of a plea, Schuh, 289 F.3d at 975.
We agree with counsel that any argument challenging the sufficiency of the
plea colloquy would be frivolous. Adams consented to a plea hearing conducted by a
magistrate judge. The magistrate judge’s colloquy was extensive, and the judge
complied with all but two aspects of Rule 11: first, the magistrate judge failed to
inform Adams that the court had the discretion to impose a sentence outside of the
guidelines range, and second, the magistrate judge did not inform Adams that he
had the right to compel witnesses to testify on his behalf. See Fed. R. Crim. P.
11(b)(1)(M), (b)(1)(E). Neither omission, however, undermined Adams’s ability to
understand his rights, nor could these omissions have possibly impacted Adam’s
decision to plead guilty. See United States v. Parker, 368 F.3d 963, 969 (7th Cir.
2004) (affirming defendant’s conviction because even if he had misunderstood the
role of the guidelines, his actions demonstrated that he would have pleaded guilty
anyway).
First, it is questionable after United States v. Booker, 543 U.S. 220 (2005),
whether Rule 11(b)(1)(M) still requires courts to inform defendants of their
discretion to depart from the guidelines. Cf. United States v. Walker, 447 F.3d 999,
No. 07-1560 Page 3
1005-1006 (7th Cir. 2006) (holding Fed. R. Crim. Pr. 32(h) no long applicable after
Booker). But, in any event, the magistrate judge’s omission in this case did not
affect Adams’s substantial rights because his guidelines range of 210 to 262 months
was capped by the 240-month statutory maximum; so the court could not have given
Adams an above-guidelines sentence. See U.S.S.G. § 5G1.1(c)(1). Second, the
magistrate judge informed Adams of his right to call witnesses on his behalf, and
the subpoena power is implicit in this right. So that omission also did not affect
Adams’s substantial rights. Thus, in light of the extensive plea colloquy and the
obvious harmlessness of these omissions, any argument that the magistrate judge
did not substantially comply with Rule 11 would be frivolous.
Next, counsel correctly maintains that it would be frivolous for Adams to
argue that his indictment improperly charged him multiple times for the same
conduct. Adams entered unconditional guilty pleas and therefore waived his right
to appeal the denial of any pretrial motions based on his indictment. United States
v. Villegas, 388 F.3d 317, 322 (7th Cir. 2004); United States v. Doherty, 17 F.3d
1056, 1058 (7th Cir. 1994). Furthermore, any argument that his sentence violates
his right against double jeopardy would be frivolous because the government could
have charged each instance of downloading the images or movies in a separate
count, and “[t]he Double Jeopardy clause is not implicated when multiple separate
violations of the same provision are charged in multiple counts.” United States v.
Snyder, 189 F.3d 640, 647 (7th Cir. 1999).
Finally, counsel considers whether Adams could challenge his sentence as
unreasonable. The district judge sentenced Adams after accepting the magistrate
judge’s recommendation to accept Adams’s guilty pleas. Counsel advises that the
district court properly calculated Adams’s guidelines range, considered the factors
set forth in 18 U.S.C. § 3553(a), and addressed and rejected Adams’s mitigating
arguments, United States v. Laufle, 433 F.3d 981, 987-88 (7th Cir. 2006), before
imposing a sentence within the guidelines range. And the district court found that
child pornography is “a tremendous problem in our society” and that Adams’s
behavior “helped provide the market for those who do these things to children.” See
18 U.S.C. § 3553(a)(1), (2)(A), (2)(B). Counsel notes that we accord sentences within
the properly calculated guidelines range a rebuttable presumption of
reasonableness, United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and
the Supreme Court recently upheld the use of that presumption, see Rita v. United
States, 127 S. Ct. 2456, 2463 (2007). Because we agree with counsel that there are
no nonfrivolous arguments to rebut that presumption, any potential challenge to
the reasonableness of Adams’s sentence would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.