United States v. Gary Cheetham , 527 F. App'x 556 ( 2013 )

NONPRECEDENTIAL DISPOSITION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 15, 2013
Decided August 16, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-3197
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 CR 543-1
GARY CHEETHAM,
Defendant-Appellant. John F. Grady,
Judge.
ORDER
Gary Cheetham used an online file-sharing program to distribute 11 images of
child pornography to an undercover FBI agent. After police searched his home and
seized his computers, he pleaded guilty to transporting and possessing child
pornography. See 18 U.S.C. § 2252A(a)(1), (a)(5)(B). The district court sentenced him to
concurrent terms totaling 240 months in prison, below his guidelines range of 262 to 327
months. Based on the parties’ agreement, the court ordered $21,000 in restitution to
three victims identified in the images. See 18 U.S.C. § 2259. Cheetham filed a notice
of appeal, but his appointed lawyer contends that the appeal is frivolous and moves to
withdraw under Anders v. California, 386 U.S. 738 (1967). Cheetham has not accepted our
No. 12-3197 Page 2
invitation to comment on counsel’s motion. See CIR. R. 51(b). We confine our review to
the potential issues identified in counsel’s facially adequate brief. See United States v.
Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel begins by telling us that Cheetham does not wish to challenge his guilty
pleas. For that reason counsel properly refrains from discussing the voluntariness of
those pleas or the district court’s compliance with Federal Rule of Criminal Procedure
11. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox,
287 F.3d 667, 671 (7th Cir. 2002).
In her Anders submission, counsel considers whether Cheetham could challenge
his sentence but correctly concludes that any appellate claim would be frivolous.
Cheetham did not object to the district court’s application of the sentencing guidelines,
and counsel has not identified any potential error in the court’s calculations.
Cheetham’s below-guidelines prison sentence is presumed reasonable, see Rita v. United
States, 551 U.S. 338, 350–51 (2007); United States v. Klug, 670 F.3d 797, 800 (7th Cir. 2012),
and we agree with counsel that the record presents no basis to set that presumption
aside. The district court considered the sentencing factors in 18 U.S.C. § 3553(a), noting
Cheetham’s lack of criminal history and post-offense participation in counseling but
concluding that a 20-year sentence is necessary to prevent him from sharing child
pornography and to deter others. See id. § 3553(a)(1), (a)(2)(B), (a)(2)(C).
Counsel also analyzes whether Cheetham could challenge the award of
restitution as untimely under 18 U.S.C. § 3664(d)(5). According to the lawyer, the
sentencing court disregarded that provision by not imposing restitution until more than
90 days “after the initial sentencing hearing and . . . determination of the length of
imprisonment.” What § 3664(d)(5) says is that a district judge “shall set a date for the
final determination of the victim’s losses, not to exceed 90 days after sentencing,” if
those losses cannot be determined in advance. Appellate counsel assumes that “90 days
after sentencing” means 90 days after the sentencing proceedings commenced. In this
case the judge started those proceedings in February 2012 and announced a prison
sentence but—after several continuances—did not finish the sentencing process until
September. In fact, in September the judge shortened one of Cheetham’s concurrent
prison terms (though not the overall sentence) after realizing that the statutory
maximum had been exceeded. The court imposed restitution on that same date and
afterward entered a single written judgment that includes both the prison and
restitution components of Cheetham’s sentence. A district court may spread out the
sentencing process over more than one date, see United States v. Shah, 665 F.3d 827,
No. 12-3197 Page 3
832–34 (7th Cir. 2011); United States v. Davis, 442 F.3d 1003, 1006–08 (7th Cir. 2006);
United States v. Luna-Acosta, 715 F.3d 860, 866 (10th Cir. 2013), and we doubt that the
words “after sentencing” as used in § 3664(d)(5) could mean a time before the court has
declared the sentencing process complete (with the exception of the loss amount). At all
events, an appellate claim about the purported noncompliance with § 3664(d)(5) would
be frivolous because missing the 90-day deadline does not preclude the sentencing court
from imposing restitution if, as was true in this case, the defendant was on notice of the
court’s intention to do so. See Dolan v. United States, 130 S. Ct. 2533, 2537 (2010).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.