United States v. Bryan Osborne ( 2020 )

NONPRECEDENTIAL DISPOSITION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 2, 2020
Decided November 3, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 19-3139
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. No. 1:17-cr-00073-1
BRYAN OSBORNE, Sara L. Ellis,
Defendant-Appellant. Judge.
ORDER
Using false identities on Facebook, Bryan Osborne recruited twelve girls and one
woman to have sex with him by falsely promising that they were auditioning for
pornographic videos. He pleaded guilty to one count of a 25-count indictment:
knowingly sex-trafficking a minor by force, fraud, or coercion, in violation of 18 U.S.C.
§ 1591(a), (b)(1), and (b)(2). After calculating a guidelines range of 292 to 365 months
based on Osborne’s category I criminal history and offense level of 40, the district court
sentenced Osborne to 264 months’ imprisonment and 12 years’ supervised release.
Osborne appeals, but his counsel asserts that the appeal is frivolous and moves to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief appears
thorough; it explains the nature of the case and the issues that an appeal of this kind
No. 19-3139 Page 2
might be expected to involve. We therefore limit our review to the subjects that counsel
discusses, and that Osborne raises in his response under Circuit Rule 51(b). See United
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel consulted with Osborne and determined that he wants to withdraw his
guilty plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012). Counsel thus
considers arguing that the district court failed to comply with Federal Rule of Criminal
Procedure 11(b) before accepting the plea. See id. Because Osborne did not move to
withdraw his plea,* we would review the Rule 11 colloquy for plain error. See United
States v. Payne, 964 F.3d 652, 655 (7th Cir. 2020). A clear and obvious error would be
reversible only if it affected Osborne’s substantial rights. Id.
We agree with counsel that it would be frivolous to argue that any omissions
from the Rule 11 colloquy prejudiced Osborne. Counsel reports that the district court
never informed Osborne that he could be prosecuted for perjury if he made a false
statement under oath. See FED. R. CRIM. PRO. 11(b)(1)(A). This omission is harmless
because there is no current or prospective perjury prosecution against him. See United
States v. Stoller, 827 F.3d 591, 597–98 (7th Cir. 2016). The district court also did not
expressly state that Osborne was “waiving” his trial rights. FED. R. CRIM.
PRO. 11(b)(1)(F). Rather, it reviewed those rights and explained that a trial would not
occur if Osborne pleaded guilty. We do not mandate a particular script during a Rule 11
colloquy, so we would not find error here. See Stoller, 827 F.3d at 597. Further, Osborne’s
plea agreement—which he admitted to reviewing and understanding—states that he
“surrender[ed]” his trial rights. Last, no prejudice could arise from not explaining the
immigration consequences of a conviction, see FED. R. CRIM. PRO. 11(b)(1)(O), because
Osborne is a citizen of the United States. Therefore, any argument that Osborne did not
plead guilty knowingly and voluntarily would be frivolous. See id. at 598.
Counsel next considers whether Osborne could make any non-frivolous
challenge to his below-guidelines sentence. He could not. To start, we agree with
counsel that an argument that the district court incorrectly calculated the guidelines
range would be frivolous. The court determined that the base offense level for
Osborne’s conviction was 32. See U.S.S.G. § 2G2.1(a). Osborne objected to three
proposed enhancements—those based on the vulnerability of his victims, his use of a
*Because Osborne was represented by counsel, the court struck without
prejudice two pro se filings from Osborne seeking to vacate his plea. No further
motions to withdraw it were filed.
No. 19-3139 Page 3
computer to commit his crime, and his pattern of prohibited conduct. See U.S.S.G.
§§ 2G2.1(b)(6)(B), 3A1.1, 4B1.5(b). After Osborne objected, the district court imposed
only the adjustment based on his computer use. Counsel rightly determines that it
would be frivolous to argue that this was error because Osborne admitted to using a
computer to request sexually explicit photos from his victims. See U.S.S.G.
§ 2G2.1(b)(6)(B); United States v. Zagorski, 807 F.3d 291, 294 (D.C. Cir. 2015) (defendant
requested sexually explicit videos of minor in online chat); United States v. Thielemann,
575 F.3d 265, 268, 272 n.12 (3rd Cir. 2009) (same).
The district court also increased Osborne’s offense level based on two special
offense characteristics that Osborne did not challenge. Because Osborne admitted to
trafficking or attempting to traffic multiple minors, the court applied a two-level
increase for each victim who was over 12 but under 16 years old, see U.S.S.G.
§ 2G2.1(b)(1)(B), and for each encounter that entailed “the commission of a sexual act or
sexual contact,” see U.S.S.G. § 2G2.1(b)(2)(A), for a total of six more levels. Finally,
under the grouping guideline, the court added five levels to reach the combined offense
level. See U.S.S.G. § 3D1.4. Although Osborne objected to certain other adjustments, he
agreed that these three applied; specifically, his lawyer told the district judge after she
set the guideline range: “I just want to preserve the objection to the (b)(6) enhancement
under 2D1.1, but with that I agree that the numbers are correct.” Therefore, Osborne
waived his right to challenge these enhancements on appeal, and it would be pointless
to try. See, e.g., United States v. Macias, 927 F.3d 985, 989–90 (7th Cir. 2019).
Counsel also concludes, correctly, that Osborne could not raise a non-frivolous
challenge to the substantive reasonableness of his sentence. A below-guidelines
sentence is presumptively reasonable. United States v. Friedman, 971 F.3d 700, 716
(7th Cir. 2020) (quoting United States v. Dewitt, 943 F.3d 1092, 1098 (7th Cir. 2019)).
Osborne could not rebut that presumption on appeal because the district court fully
considered the factors under 18 U.S.C. § 3553(a) in selecting his sentence. See United
States v. Lockwood, 840 F.3d 896, 903 (7th Cir. 2016). The court weighed the nature of
Osborne’s offense, the impact on his victims, his own history of abuse, and his high
potential for rehabilitation. Although the government asked for a life sentence (the
statutory maximum), and the probation office recommended 30 years, the court
concluded that a below-range sentence was appropriate because of the prospect of
rehabilitation. Counsel is thus correct that any argument challenging the length of the
sentence would be frivolous.
No. 19-3139 Page 4
Osborne raises two more potential arguments. First, he contends that he received
ineffective assistance of counsel because, among other reasons, his trial attorneys failed
to: obtain all discovery materials, investigate alleged instances of prosecutorial
misconduct, move to suppress certain evidence, correct errors in his plea agreement,
and move to withdraw his guilty plea. As counsel suggests, because a record on these
issues was never developed, Osborne would be unable to show on direct appeal that
counsel was ineffective. See Massaro v. United States, 538 U.S. 500, 504–05 (2003);
United States v. Cates, 950 F.3d 453, 457 (7th Cir. 2020). This kind of ineffective-assistance
claim should be pursued in a motion under 28 U.S.C. § 2255. See id.
Finally, Osborne wishes to argue that the district court lacked subject-matter
jurisdiction because he is a “Moorish” citizen. The superseding indictment charged
Osborne with violations of federal criminal law, so the district court had jurisdiction.
See 18 U.S.C. § 3231. Osborne could not offer any non-frivolous argument to the
contrary. See United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.