NONPRECEDENTIAL DISPOSITION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 February 17, 2010
Decided February 17, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08-3014
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 07-CR-306
TIMOTHY E. KRIESCHER, William C. Griesbach,
Defendant-Appellant. Judge.
ORDER
Timothy Kriescher pleaded guilty to receiving child pornography, see 18 U.S.C.
§ 2252A(a)(2), and the district court sentenced him to 60 months’ imprisonment followed
by 20 years of supervised release. In his plea agreement Kriescher promised to forgo any
appeal or collateral challenge to his conviction or sentence unless it resulted from
ineffective assistance of counsel or consideration of constitutionally impermissible factors.
Kriescher appealed, but his appointed counsel moves to withdraw because he cannot
identify any nonfrivolous argument to pursue. See Anders v. California,
386 U.S. 738 (1967).
Kriescher did not respond to counsel’s submission. See C IR. R. 51(b). We confine our
review to the potential issues identified in counsel’s facially adequate brief. See United
No. 08-3014 Page 2
States v. Schuh,
289 F.3d 968, 973 (7th Cir. 2002).
Kriescher has indicated that he wants his guilty plea set aside, so counsel properly
begins by evaluating whether he could challenge the voluntariness of his guilty plea or the
adequacy of the plea colloquy. See FED R. C RIM. P. 11; United States v. Knox,
287 F.3d 667,
671-72 (7th Cir. 2002). Because Kriescher did not move to withdraw his guilty plea in the
district court, our review would only be for plain error. See United States v. Vonn,
535 U.S.
55, 59 (2002); United States v. Griffin,
521 F.3d 727, 730 (7th Cir. 2008).
Counsel considers challenging the plea colloquy based on two irregularities. First,
when inquiring about the voluntariness of the plea, the district court asked if the agreement
was produced by “force” but did not ask Kriescher if he had been “threatened” in the
process. See FED. R. C RIM. P. 11(b)(2). Second, the district court did not explicitly tell
Kriescher that he had the right to plead not guilty. See id. at 11(b)(1)(B). But both of these
omissions were harmless because the plea agreement specifically stated that “no threats,
promises, representations, or other inducements” produced Kriescher’s plea, and it
properly informed him of his right to plead not guilty. See id. at 11(h); United States v.
Driver,
242 F.3d 767, 771 (7th Cir. 2001). Moreover the transcript of the Rule 11 colloquy
makes clear that the judge repeatedly verified that Kriescher’s plea was knowing and
voluntary and that he understood his right to plead not guilty. Given this context, it would
be frivolous to argue that Kriescher’s plea was involuntary based on the plea colloquy.
Counsel also informs us that Kriescher believes his plea was involuntary because of
ineffective assistance from his previous attorney. A challenge to the adequacy of counsel’s
performance, however, is best pursued on collateral review so that a more complete record
can be developed. See Massaro v. United States,
538 U.S. 500, 504-05 (2003); United States v.
Harris,
394 F.3d 543, 557-58 (7th Cir. 2005).
Finally, counsel considers challenging Kriescher’s sentence. But this argument is
foreclosed by the appeal waiver because no aspect of the sentence exceeded the statutory
maximum. See 18 U.S.C. § 2252A(a)(2)(A). If the guilty plea stands, so does the waiver.
United States v. Wilson,
481 F.3d 475, 483 (7th Cir. 2007); United States v. Whitlow,
287 F.3d
638, 640 (7th Cir. 2002).
Accordingly, we G RANT counsel’s motion to withdraw and D ISMISS the appeal.
