United States v. Dale Tennison , 445 F. App'x 876 ( 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NONPRECEDENTIAL DISPOSITION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 November 1, 2011
Decided November 2, 2011
Before
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10-3867
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 1:10-CR-10078-001
DALE DEAN TENNISON, Michael M. Mihm,
Defendant-Appellant. Judge.
ORDER
Dale Tennison traded thousands of images and videos of child pornography using
online messaging software. He pleaded guilty without a plea agreement to transporting
child pornography, 18 U.S.C. § 2252A(a)(1), and receiving child pornography, id.
§ 2252A(a)(2)(A). The district court sentenced him to 336 months’ imprisonment¯24
months below the low end of his guidelines range. Tennison filed a notice of appeal, but his
counsel moves to withdraw under Anders v. California, 386 U.S. 738, 744 (1967), because he
cannot find any nonfrivolous argument to pursue on appeal. Tennison has not accepted our
invitation to respond to counsel’s motion. See C IR. R. 51(b). We confine our review to the
No. 10-3867 Page 2
potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289
F.3d 968, 973–74 (7th Cir. 2002).
Because Tennison told his attorney that he wants to set aside his guilty pleas,
counsel first considers whether Tennison’s pleas were knowing and voluntary. Tennison
did not move to withdraw his guilty pleas in the district court, so we would review his plea
colloquy for plain error. See FED. R. C RIM . P. 52(b); Puckett v. United States, 129 S. Ct. 1423,
1432–33 (2009); United States v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010). We agree with
counsel that any argument challenging the adequacy of the plea colloquy or the
voluntariness of Tennison’s guilty pleas would be frivolous. The court advised Tennison,
among other things, of the rights he would give up by pleading guilty and the minimum
and maximum sentences that he faced. The court also determined that Tennison was
competent to enter a plea and had not been forced or coerced to do so. See FED. R. C RIM . P.
11(b). The government recounted the factual allegations against Tennison, and he admitted
that the allegations were true. Although the district court did not tell Tennison that his
right to counsel would extend beyond trial to “every other stage of the proceeding,” see
FED. R. C RIM . P. 11(b)(1)(D), Tennison must have known this because he had been
represented by counsel throughout the proceedings. See United States v. Lovett, 844 F.2d 487,
491 (7th Cir. 1988). The open plea of guilty memorandum that Tennison acknowledged
having read in his plea colloquy informed him of this right, and the omission did not affect
Tennison’s substantial rights, see FED. R. C RIM . P. 11(h).
Counsel then considers whether Tennison could challenge the denial of his objection
to the five-level adjustment for a pattern of activity involving the sexual abuse or
exploitation of a minor. See U.S.S.G. § 2G2.2(b)(5). The district court based the adjustment
on Tennison’s conviction in 1978 for contributing to the sexual delinquency of a child and a
2003 battery conviction for an incident in which Tennison “placed his hand on [a minor’s]
crotch.” Before he was sentenced, Tennison argued that these acts could not constitute a
pattern because they were too remote from each other in time and too different in kind. (He
did not dispute the court’s finding that he had sexually abused a minor on two occasions.)
Tennison’s argument is unpersuasive. The application note to § 2G2.2(b)(5) defines a
“pattern of activity” to mean “any combination of two or more separate instances of the
sexual abuse or sexual exploitation of a minor by the defendant,” U.S.S.G. § 2G2.2, cmt. n.1
(emphasis added); no temporal or qualitative limitation appears in the note’s text. In United
States v. Lovaas, 241 F.3d 900, 903–04 (7th Cir. 2001), we held that incidents of sexual abuse
26 years apart were sufficient to trigger a five-level upward adjustment under § 2G2.2(b)(5).
See also United States v. Nance, 611 F.3d 409, 413 (7th Cir. 2010). Six other circuits have
likewise concluded that § 2G2.2(b)(5) permits sentencing courts to consider remote-in-time
conduct. See United States v. Bacon, 646 F.3d 218, 220–21 (5th Cir. 2011); United States v.
No. 10-3867 Page 3
Turner, 626 F.3d 566, 572–73 (11th Cir. 2010); United States v. Olfano, 503 F.3d 240, 243 (3d
Cir. 2007); United States v. Garner, 490 F.3d 739, 743 (9th Cir. 2007); United States v. Gawthrop,
310 F.3d 405, 414 (6th Cir. 2002); United States v. Woodward, 277 F.3d 87, 90–92 (1st Cir.
2002).
Counsel lastly recognizes that any challenge to the reasonableness of Tennison’s
sentence would be frivolous. We presume that a below-guidelines sentence is reasonable,
United States v. Berg, 640 F.3d 239, 255 (7th Cir. 2011); United States v. West, 628 F.3d 425, 431
(7th Cir. 2010), and counsel cannot identify any reason to disregard that presumption.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.