NONPRECEDENTIAL DISPOSITION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 16, 2011
Decided November 17, 2011
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
No. 10‐3041
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 Cr 491 ‐1
TIMOTHY SCHOLTES,
Defendant‐Appellant. Robert W. Gettleman,
Judge.
O R D E R
Timothy Scholtes waived indictment and pleaded guilty to an information charging
him with sexual exploitation of a child, 18 U.S.C. § 2251(a), and two counts of receiving
child pornography, id. § 2252(a)(2)(A). Scholtes had taken a sexually explicit photograph of
a 10‐year‐old boy he was chaperoning on a baseball outing, and he also had purchased child
pornography over the Internet. The district court, after denying Scholtes’s motion to
withdraw his guilty pleas, sentenced him within the guidelines range to a total of 600
months’ imprisonment.
Scholtes filed a notice of appeal, but his appointed lawyer seeks to withdraw because
he cannot identify a nonfrivolous ground for appeal. See Anders v. California, 386 U.S. 738
No. 10‐3041 Page 2
(1967). Scholtes opposes counsel’s motion. See CIR. R. 51(b). We confine our review to the
potential issues identified in counsel’s facially adequate brief and Scholtes’s response. See
United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel considers whether Scholtes could argue that it was an abuse of discretion to
deny him leave to withdraw his guilty pleas. In his motion Scholtes principally argued that
the district court had not adequately explained the nature of the charges during the Rule 11
colloquy. See FED. R. CRIM. P. 11(b)(1)(G). The district court conducted a hearing on the
motion where Scholtes, through a new lawyer who was appointed after he pleaded guilty,
asserted that the judge initially had described incorrectly the exploitation count as “enticing
a minor for sexual activity” and the receipt counts as “possession” of child pornography.
We would have difficulty saying that the court’s description of the first count was
inaccurate, since § 2251(a) defines the crime of child exploitation to include enticing a minor
to engage in sexual activity for the purpose of producing a visual image of that activity. See
18 U.S.C. § 2251(a). And the court’s misstatement about the nature of the receipt charges
had been caught and corrected before Scholtes entered his guilty pleas. Moreover, the
charges in the information were read to Scholtes during the colloquy, and, for simple crimes
like these, that step was sufficient to apprise Scholtes of the nature of the charges as
required by Rule 11(b)(1)(G). See United States v. Webb, 403 F.3d 373, 379 (6th Cir. 2005);
United States v. Valdez, 362 F.3d 903, 908 (6th Cir. 2004); Harvey v. McCaughtry, 11 F.3d 691,
695–96 (7th Cir. 1993). There is also a presumption that Scholtes was adequately informed
because he stated under oath that he had read and discussed the charges with his attorney,
and that he understood those charges. See Bousley v. United States, 523 U.S. 614, 618 (1998);
Webb, 403 F.3d at 379.
At the hearing on Scholtes’s motion, defense counsel also asserted that Scholtes had
pleaded guilty involuntarily due to pressure from his former lawyer and threats from the
prosecutor. To ensure the voluntariness of a guilty plea, a district court must conduct a
colloquy that substantially complies with the requirements of Rule 11. United States v.
Bowlin, 534 F.3d 654, 656–57 (7th Cir. 2008); United States v. Blalock, 321 F.3d 686, 688 (7th
Cir. 2003). Here, the transcript of the plea colloquy establishes that, in addition to assuring
that Scholtes understood the nature of the charges, the district court reviewed with him his
constitutional rights, the factual basis for the charges, the statutory maximum and
minimum penalties, and the guidelines sentencing range. Scholtes assured the court under
oath that he was pleading guilty voluntarily, and while a lack of voluntariness constitutes a
“fair and just reason” for withdrawing a guilty plea, see FED R. CRIM. P. 11(d)(2)(B), Scholtes
never overcame the presumption that his statements during the plea colloquy were truthful.
Bowlin, 534 F.3d at 659–60. The district court noted that Scholtes, who did not seek to testify
under oath at the hearing on his motion to withdraw his guilty pleas, had not produced any
No. 10‐3041 Page 3
evidence of threats or other coercion. Although the court acknowledged that Scholtes had
struggled during the plea colloquy, the court found that the reason for this difficulty was
Scholtes’s discomfort admitting the terrible conduct he was accused of, not because he was
being pressured to plead guilty. We would not conclude that this determination was clear
error. See United States v. Singleton, 588 F.3d 497, 500 (7th Cir. 2009); United States v. Chavers,
515 F.3d 722, 724–25 (7th Cir. 2008); United States v. Weathington, 507 F.3d 1068, 1071 (7th
Cir. 2007).
We thus agree with appellate counsel that it would be frivolous for Scholtes to argue,
based on the record compiled in the district court, that the judge abused his discretion in
denying Scholtes’s motion to withdraw his guilty pleas. Our conclusion is not altered by
Scholtes’s contention, made in his Rule 51(b) response, that he should have been allowed to
withdraw his pleas because his first attorney failed to adequately counsel him and prepare
him to plead guilty. Scholtes notes that he pleaded guilty at what originally had been
scheduled as a status hearing, and he alleges that he was suffering from depression at the
time and was in “unsuitable mental condition for submitting a plea.” Once again, though,
the problem for Scholtes is that he did not introduce evidence to support these new
allegations, and the existing record contradicts his present statments. See Bowlin, 534 F.3d at
659–60. Scholtes stated during the plea colloquy that he never had been treated for mental
illness, and his lawyer confirmed that he did not doubt Scholtes’s competence to plead
guilty. Scholtes also said that he had read the charges in the information and discussed
them with his lawyer, that there was nothing additional he wished to discuss with counsel
before pleading guilty, and that he was satisfied with the advice he had received. A direct
appeal is not the time for Scholtes to assert that he was untruthful during the plea colloquy.
Counsel last considers whether Scholtes could challenge his overall prison sentence,
but counsel cannot point to any procedural error in the district court’s calculation of the
guidelines imprisonment range. The district court adopted the probation officer’s properly
calculated guidelines range of life imprisonment, as limited by the combined statutory
maximum of 840 months for the three counts, see U.S.S.G. § 5G1.1(c)(1), and sentenced
Scholtes below the guidelines range to a total of 600 months’ imprisonment. Counsel has not
identified any reason to disregard the presumption of reasonableness applicable to a
sentence below the guidelines range. See Rita v. United States, 551 U.S. 338, 347 (2007); United
States v. Martinez, 650 F.3d 667, 671 (7th Cir. 2011); United States v. Pape, 601 F.3d 743, 746
(7th Cir. 2010). The district court evaluated the sentencing factors in 18 U.S.C. § 3553(a) and
determined that a lengthy sentence was necessary because of the seriousness of the crimes
and the need to deter others and protect children. We would not conclude that the court
abused its discretion in making that assessment, and thus counsel is correct that any
challenge to the prison sentence would be frivolous.
No. 10‐3041 Page 4
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
