NONPRECEDENTIAL DISPOSITION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 September 23, 2010
Decided October 20, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 09‐3435
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 09‐CR‐49‐C‐01
ALFRED T. SHIPPY, Barbara B. Crabb,
Defendant‐Appellant. Judge.
O R D E R
During an interview with a school counselor, a ten‐year‐old girl reported that Alfred
Shippy, her mother’s boyfriend, had taken pictures of her while she was using the
bathroom. The school called the police. Law enforcement then searched Shippy’s home
and discovered a video camera, a digital camera, and two storage disks that contained
sexually explicit images of the young girl. Shippy, who had a prior conviction for
possession of child pornography and was a registered sex offender, pleaded guilty to
producing child pornography. See 18 U.S.C. § 2251(a). The district court sentenced him to
40 years’ imprisonment and a life term of supervised release. Shippy filed a notice of
appeal but his appointed lawyer has concluded the case is frivolous and has moved to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Shippy responded to counsel’s
motion, see CIR. R. 51(b), by asking to substitute counsel who he argues, would challenge the
length of his sentence. We review only the potential issues identified in counsel’s facially
No. 09‐3435 Page 2
adequate brief and Shippy’s Rule 51(b) response. See United States v. Schuh, 289 F.3d 968,
973‐74 (7th Cir. 2002).
Shippy now wants his guilty plea set aside, so his appellate counsel properly
considers whether he could challenge the adequacy of the plea colloquy. See FED. R. CRIM.
P. 11; United States v. Knox, 287 F.3d 667, 671‐72 (7th Cir. 2002). Because Shippy did not
move to withdraw his guilty plea in the district court, we would review for plain error only.
See FED. R. CRIM. P. 52(b); Puckett v. United States, 129 S. Ct. 1423, 1429 (2009); United States v.
Anderson, 604 F.3d 997, 1001 (7th Cir. 2010). Counsel directs us to two omissions in the
district court’s plea colloquy, including the court’s failure to advise Shippy (1) that false
statements made under oath could be used against him in a prosecution for perjury and
(2) that the court had authority to order restitution. See FED. R. CRIM. P. 11(b)(1)(A),
(b)(1)(K). Both of these errors were harmless, however. There is no current or prospective
prosecution against Shippy for perjury, see United States v. Blalock, 321 F.3d 686, 689 (7th Cir.
2003); United States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996), and the court did not order
restitution, see United States v. Fox, 941 F.2d 480, 483‐84 (7th Cir. 1991). Counsel also asserts
that the district court failed to advise Shippy that he had a right to confront witnesses,
see FED. R. CRIM. P. 11(b)(1)(E), but acknowledges that the court did advise Shippy of his
right to cross‐examine them. Moreover, Shippy’s plea agreement specifically stated that he
was waiving his right to confront witnesses. See United States v. Driver, 242 F.3d 767, 771
(7th Cir. 2001).
Counsel and Shippy next consider whether he could challenge the length of his
sentence. At sentencing, however, Shippy’s counsel stated that there were no objections to
the guideline calculation, and this statement, counsel maintains, waived any error. But
whether Shippy waived or merely forfeited any challenge, any attack would be frivolous
because the district court calculated the guidelines range properly. To Shippy’s base offense
level of 32, see U.S.S.G. § 2G2.1(a), the district court added 4 levels because Shippy’s victim
was 10 years old, see id. § 2G2.1(b)(1)(A); 2 levels because, in the video, Shippy engaged in
sexual contact with the child, see id. § 2G2.1(b)(2)(A); another 2 levels because as the
boyfriend of the victim’s mother, Shippy had supervisory control over the victim, see id.
§ 2G2.1(b)(5); and 5 more because his criminal history reflected a pattern of activity
involving prohibited sexual conduct, see id. § 4B1.5(b)(1). The court also subtracted three
levels for accepting responsibility. See id. § 3E1.1(a)‐(b). A total offense level of 42 and
criminal history category III yields an applicable guidelines range of 360 months’
imprisonment to life. Shippy’s 40‐year sentence is within the guidelines range and thus
presumed to be substantively reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007);
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Further, the sentencing judge
adequately considered the 18 U.S.C. § 3553(a) factors, taking into account Shippy’s
characteristics such as his diminished mental capacity, the heinous nature of his crime, his
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targeting of single mothers to take advantage of their children, and the need for adequate
deterrence in light of his history of failed treatment. See 18 § 3553(a)(1), (a)(2)(A)‐(B). We
agree with counsel that any challenge to the reasonableness of Shippy’s sentence would be
frivolous.
Accordingly, we GRANT counsel’s motion to withdraw, DENY Shippy’s motion for
new counsel, and DISMISS the appeal.
