United States v. Robert Shipley , 438 F. App'x 493 ( 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NONPRECEDENTIAL DISPOSITION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 August 10, 2011*
Decided August 15, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 11-1508
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 10 CR 40036
ROBERT R. SHIPLEY, G. Patrick Murphy,
Defendant-Appellant. Judge.
ORDER
Robert Shipley was caught sharing child pornography over the Internet. A grand jury
charged him with one count each of distributing and possessing child pornography. See 18
U.S.C. § 2252A(a)(2)(A), (a)(5)(B). He pleaded guilty to both counts, and the district court
sentenced him to a total of 210 months’ imprisonment plus a lifetime term of supervised
release. Shipley filed a notice of appeal, but his appointed lawyer moves to withdraw on the
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See
Fed. R. App. P. 34(a)(2)(C).
No. 11-1508 Page 2
ground that the appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967). Shipley has
not responded to counsel’s submission. See Cir. R. 51(b). We confine our review to the
potential issues identified in the brief supporting counsel’s motion. See United States v.
Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Shipley has not said that he wishes to challenge his guilty pleas, so counsel properly
omits discussion about the adequacy of the plea colloquy or the voluntariness of the pleas.
See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir. 2002).
Counsel first considers whether Shipley could argue that the district court imposed
an unduly broad special condition of supervised release by requiring that Shipley
submit his person, and any property, house, residence, vehicle, papers,
computer, other electronic communications or data storage devices or media,
and effects to search at any time, with or without a warrant, by any law
enforcement or probation officer with reasonable suspicion concerning a
violation of a condition of supervised release or unlawful conduct by the
person, and by any probation officer in the lawful discharge of the officer's
supervision functions.
18 U.S.C. § 3583(d). Specifically, counsel questions whether Shipley could argue that this
special condition is worded so broadly that it can be read to require him to give his
permission to search third-party belongings in his possession but over which he has no
authority. Shipley raised this concern to the district court, which concluded that the special
condition (the language of which is taken directly from 18 U.S.C. § 3583(d)) must be
interpreted to limit the scope of any search to property belonging to Shipley. Our review of
the contention would be for abuse of discretion. United States v. Angle, 598 F.3d 352, 360 (7th
Cir. 2010); United States v. Schave, 186 F.3d 839, 841 (7th Cir. 1999).
Appellate counsel contends that this proposed argument would be frivolous because
the district judge, in open court, gave the special condition a narrowing construction to limit
its reach to Shipley’s belongings. But the court did not revise the language of the condition
to reflect this narrowing construction, though Shipley presumably can seek a correction of
the judgment under Federal Rule of Criminal Procedure 36. As the condition stands,
however, we would conclude that any claim about its scope vis-a-vis the possessions of
third parties is frivolous. Shipley can consent to a search over any property over which he
has common authority or joint control. See United States v. Matlock, 415 U.S. 164, 170 (1974);
United States v. James, 571 F.3d 707, 714 (7th Cir. 2009).
No. 11-1508 Page 3
To the extent that a third party might not want Shipley to permit searches of
commonly controlled property, the district court’s judgment imposed a standard condition
of supervised release requiring that Shipley, at the direction of his probation officer, notify
third parties of his criminal record and personal history or permit the probation officer to do
so. Yet another condition, moreover, requires in part that Shipley “consent to third-party
disclosure to any employer or potential employer, concerning any computer-related
restrictions that may be imposed” and that he “warn other residents or occupants of his
home that computer systems will be subject to inspection by the probation officer” or other
authorized contractor. These provisions obviate the concern that Shipley will be asked to
authorize searches of property in his possession that belongs exclusively to third parties. In
light of these warnings, third parties who permit Shipley to have joint control over their
premises or possessions assume the risk that their property will be searched. See Matlock,
415 U.S. at 171; James, 571 F.3d at 713-14. And, at all events, should the provision later
present a problem, Shipley can always seek a modification to the terms of his release. 18
U.S.C. § 3583(e)(2); Fed. R. Crim. P. 32.1(c); United States v. Tejeda, 476 F.3d 471, 475 (7th Cir.
2007).
Counsel also evaluates whether Shipley could challenge his sentencing proceeding
but concludes that the claim would be frivolous. Shipley’s total offense level of 34 and
criminal history category of III yielded a guidelines imprisonment range of 188 to 235
months. See U.S.S.G. § 5A (Sentencing Table). The 210-month imprisonment term he
received is just below the midpoint of this range. Counsel identifies neither any procedural
defect in the district court’s calculation, nor any reason to doubt the substantive
reasonableness of the sentence the district court imposed. See Rita v. United States, 551 U.S.
338, 347 (2007); United States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010); United States v. Wallace,
531 F.3d 504, 507 (7th Cir. 2008).
Finally, Shipley’s lawyer says that ineffective assistance of counsel is a possible
ground for appeal. But counsel, who also represented Shipley in the district court, has not
characterized any aspect of her performance as deficient, and so we do not have even a
potential claim before us. Nor would we have expected counsel to accuse herself of
ineffective assistance. United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003); United States v.
Martinez, 169 F.3d 1049, 1052 (7th Cir. 1999). If there is an argument about her performance,
that contention is best presented on collateral review, where the record can be further
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); Martinez, 169 F.3d at 1052.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.