United States v. Jacob Armes , 415 F. App'x 729 ( 2011 )

NONPRECEDENTIAL DISPOSITION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 March 30, 2011
Decided March 31, 2011
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10-2586
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 09-30023-001
JACOB A. ARMES, Jeanne E. Scott,
Defendant-Appellant. Judge.
ORDER
Jacob Armes subscribed to an Internet file-sharing service that allowed other
members to access child pornography stored on his work computer. Illinois authorities
searched his residence pursuant to a warrant and uncovered more than 9,800 images of
child pornography on his home computer, hard drives, and data discs. Armes pleaded
guilty to separate counts of receiving and possessing child pornography, see 18 U.S.C.
§ 2252A(a)(2)(B), (5)(b), and was sentenced to 151 months’ imprisonment, at the bottom of
the guidelines range. Armes filed a notice of appeal, but his appellate counsel has
concluded that the case is frivolous and seeks permission to withdraw. See Anders v.
California, 386 U.S. 738 (1967). Armes has not accepted our invitation to comment on
counsel's facially adequate submission. See CIR. R. 51(b). We limit our review to the
No. 10-2586 Page 2
potential issues counsel discusses. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.
2002).
Counsel begins by noting that Armes does not want his guilty pleas vacated, and so
appropriately refrains from discussing the adequacy of the plea colloquy or the
voluntariness of the pleas. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel first considers whether Armes could challenge the two-level upward
adjustment for distribution of child pornography, see U.S.S.G § 2G2.2(b)(3)(F), to which he
objected at sentencing. At sentencing Armes argued that he did not “intend” to distribute
child pornography, as reflected by the steps he took to dissuade other users from
downloading from his computer, such as setting a slow download speed and limiting the
quantity of files available. The district court rejected this argument, explaining that
regardless of these steps, Armes still made child pornography available for others to
download and that amounted to distribution. We agree with counsel that any challenge to
the adjustment would be frivolous because a defendant need not have distribution as the
ultimate goal; the adjustment applies when a defendant, like Armes, makes child
pornography available for others to download through a file-sharing service. See U.S.S.G
§ 2G2.2 cmt. n.1 (defining distribution to include “posting material involving the sexual
exploitation of a minor on a website for public viewing”); United States v. Estey, 595 F.3d
836, 844 (8th Cir. 2010); United States v. Carani, 492 F.3d 867, 876 (7th Cir. 2007).
Counsel similarly considers whether Armes could challenge the court’s failure to
award him a two-level downward adjustment under § 2G2.2(b)(1)–again because
distribution of child pornography was not Armes’s ultimate goal. But counsel correctly
concludes that any such argument would be frivolous because the adjustment applies only
if the defendant’s conduct is limited to receipt or solicitation, see United States v. Burgess, 576
F.3d 1078, 1102 (10th Cir. 2009); United States v. Fore II, 507 F.3d 412, 415-16 (6th Cir. 2007),
which was not the case here.
Finally counsel examines whether Armes could challenge the reasonableness of his
sentence, but properly concludes that any such challenge would be frivolous. We would
presume a within-range sentence to be reasonable, see Rita v. United States, 551 U.S. 338, 347
(2007); United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008), and here the district court
correctly calculated a guidelines range of 151 to 170 months based on a category I criminal
history and a total offense level of 34, which included a three-point reduction for acceptance
of responsibility under U.S.S.G. § 3E1.1. In deciding to impose a 151-month sentence, the
court considered the sentencing factors under 18 U.S.C. § 3553(a), emphasizing the number
of images on Armes’s computer, the reckless way in which Armes downloaded the image,
No. 10-2586 Page 3
the availability of psychological therapy in prison, and the need to prevent Armes inflicting
further harm on the community.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.