NONPRECEDENTIAL DISPOSITION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 3, 2010
Decided March 12, 2010
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09‐3240
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:07‐cr‐00126
RANDY GELLINGER,
Defendant‐Appellant. David F. Hamilton,
Judge.
O R D E R
After a bench trial, Randy Gellinger was found guilty of possessing child
pornography, see
18 U.S.C. § 2252(a)(4)(B), and he was sentenced to the statutory maximum
of 120 months in prison. See
id. § 2252(b)(2). Gellinger appeals, but his appointed counsel
has moved to withdraw because he cannot identify any nonfrivolous argument to pursue
on appeal. See Anders v. California,
386 U.S. 738, 744 (1967). Gellinger opposes counsel’s
motion. See CIR. R. 51(b). We confine our review to the potential issues outlined in
counsel’s facially adequate brief and Gellinger’s response. See United States v. Schuh,
289
F.3d 968, 973‐74 (7th Cir. 2002).
A task force investigating child exploitation crimes told federal and state officers that
Gellinger had bought memberships to two known child pornography websites. The officers
No. 09‐3240 Page 2
went to question Gellinger at his parents’ home; there, they read him his Miranda rights and
obtained a written waiver‐of‐rights form on which he noted that he was not in custody.
Gellinger admitted to having purchased membership in a child‐pornography website and to
having child pornography on his computer. After Gellinger consented orally and in writing
to a search of his computer, the officers checked the computer and promptly found child
pornography. He was arrested a week later, again given Miranda warnings, confronted
with several of the files found on his computer, and he admitted that the files were his.
Gellinger moved to suppress evidence obtained during the search. The district court
denied the motion because Gellinger had signed written forms consenting to the searches,
and there was no persuasive reason to invalidate those consents. The case proceeded to a
bench trial, upon which he was convicted of knowingly possessing 18 images of child
pornography.
In his Anders submission, counsel first considers whether Gellinger could challenge
the denial of his motion to suppress his statements to the police and the evidence recovered
from his parents’ home. Counsel asks whether the statements or consents that Gellinger
gave at his parents’ home were in any way involuntary, procured by threat or intimidation.
We agree with counsel that it would be frivolous to raise this challenge on appeal.
First, as the district court found, Gellinger was not in custody at the time of questioning.
Whether a suspect is in custody turns on whether, based on the totality of the
circumstances, a reasonable person would believe that he was free to leave. United States v.
Thompson,
496 F.3d 807, 810 (7th Cir. 2007). Here the court found that the agents had been
invited into the home, Gellinger had agreed to be questioned, and the officers did not
physically restrain or intimidate Gellinger in any manner. And even if the interview was
deemed custodial, the court continued, the officers secured a knowing and voluntary
waiver when Gellinger signed a written waiver of rights. Finally, the court disbelieved
Gellinger’s denials that he understood this waiver, and neither counsel nor Gellinger points
to anything in the record that would lead us to disturb the court’s finding. See United States
v. Villalpando,
588 F.3d 1124, 1127 (7th Cir. 2009); United States v. Stewart,
536 F.3d 714, 720
(7th Cir. 2008).
Counsel also considers whether Gellinger could argue that there was insufficient
evidence to support a finding of guilt. In reviewing a case for sufficiency of the evidence,
we would view the evidence in the light most favorable to the government and uphold a
conviction unless there is no evidence in the record from which a fact‐finder could have
found the defendant guilty. See United States v. Hampton,
585 F.3d 1033, 1040 (7th Cir. 2009);
United States v. Moses,
513 F.3d 727, 733 (7th Cir. 2008). Gellinger would face a “nearly
No. 09‐3240 Page 3
insurmountable” hurdle in showing that the evidence was insufficient to support a
conviction, and we would not second‐guess the fact‐finder’s decisions regarding the weight
of the evidence. United States v. Oros,
578 F.3d 703, 710 (7th Cir. 2009); United States v. Angle,
234 F.3d 326, 339 (7th Cir. 2000). Based on Gellinger’s admissions to the police and the
numerous images recovered from his computer files, we agree with counsel that the
evidence was more than sufficient for the judge to find Gellinger guilty beyond a reasonable
doubt. See United States v. Muick,
167 F.3d 1162, 1166 (7th Cir. 1999) (recounting evidence
deemed sufficient to uphold convictions on child pornography charges).
Finally, counsel considers whether Gellinger could challenge his sentence. We agree
that any such challenge would be frivolous. The district court correctly calculated
Gellinger’s recommended guidelines range at 151‐188 months, but noted that this range
exceeded the 120‐month statutory maximum under
18 U.S.C. § 2252(b)(2)–which became
the recommended sentence. See U.S.S.G. § 5G1.1(a). We would presume that a sentence
falling within the properly calculated guidelines range is reasonable. See Rita v. United
States,
551 U.S. 338, 345‐48 (2007)); see also United States v. Mykytiuk,
415 F.3d 606, 608 (7th
Cir.2005). The transcript from Gellinger’s sentencing hearing shows that the court
appropriately considered the required factors under
18 U.S.C. § 3553(a), taking into account
the extremely exploitative nature of child pornography; Gellinger’s significant criminal
history of misdemeanor offenses, including additional foreboding incidents in the
preceding month; and the need to deter others who might be thinking about collecting child
pornography.
In his Rule 51(b) response, Gellinger broadly asserts that he received “ineffective
counseling.” A challenge to the adequacy of counsel’s performance, however, is best
pursued on collateral review so that a more complete record can be made. See Massaro v.
United States,
538 U.S. 500, 504‐05 (2003); United States v. Wilson,
481 F.3d 475, 485 (7th Cir.
2007). Gellinger also claims that the court and the government were biased because of the
nature of his crime. But Gellinger points to nothing in the record that would suggest
inappropriate bias, and we can find none.
Accordingly, we GRANT counselʹs motion to withdraw and DISMISS the appeal.
