NONPRECEDENTIAL DISPOSITION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 April 8, 2014
Decided April 10, 2014
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13‐2735
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
Hammond Division.
v.
No. 2:11cr183‐001
JON WILLIAM ZONDOR,
Defendant‐Appellant. Joseph S. Van Bokkelen,
Judge.
O R D E R
The adult grandson of Jon Zondor’s girlfriend found child pornography on a CD
and on an external hard drive he had stolen from Zondor. He told his mother about the
discovery, and she notified the FBI. Federal agents executed a search warrant at
Zondor’s home and found 9,433 images and 248 videos of child pornography on his
computer and storage media. Zondor pleaded guilty without a plea agreement to one
count of possessing child pornography. See 18 U.S.C. § 2252(a)(4). At sentencing, the
district judge relied on records from Illinois authorities to conclude that Zondor
previously had been convicted in Cook County of aggravated criminal sexual abuse of a
minor, see ILL. REV. STAT. 1989, ch. 38, ¶ 12‐16(d), which made him subject to a 10‐year
No. 13‐2735 Page 2
statutory minimum sentence, see 18 U.S.C. § 2252(b)(2). The judge sentenced Zondor to
120 months, well below the guidelines range of 151 to 180 months.
Zondor filed a notice of appeal, but his lawyer asserts that the appeal is frivolous
and seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Zondor has
not responded to his lawyer’s motion. See CIR. R. 51(b). Counsel has submitted a brief
that explains the nature of the case and addresses the issues that this kind of case might
be expected to involve. Because this analysis appears to be thorough, we limit our
review to the subjects that counsel has discussed. See United States v. Wagner, 103 F.3d
551, 553 (7th Cir. 1996).
Counsel does not say whether Zondor wants to challenge his guilty plea, but our
review of the record convinces us that any appellate claim would be frivolous.
See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287
F.3d 667, 670–71 (7th Cir. 2002). During the plea colloquy, the district court neglected to
inform Zondor that his statements made under oath during the colloquy could be used
against him in a prosecution for perjury, FED. R. CRIM. P. 11(b)(1)(A), and that he would
have a right to counsel should he elect to go to trial, FED. R. CRIM. P. 11(b)(1)(D). But
Zondor never moved to withdraw his guilty plea on the basis of these omissions or on
any other ground, and thus our review would be limited to plain error. See United States
v. Vonn, 535 U.S. 55, 62–63 (2002); United States v. Davenport, 719 F.3d 616, 618 (7th Cir.
2013). The judge’s failure to admonish Zondor that his sworn statements might be used
against him in the future could not have been plain error because no perjury
prosecution is pending or contemplated. See United States v. Blalock, 321 F.3d 686, 689
(7th Cir. 2003); United States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996). And although the
court did not inform Zondor that his right to counsel would extend to all proceedings
including trial, neither could this omission have been plain error because Zondor was
represented by appointed counsel and almost certainly knew that his lawyer, who was
appointed three days after his arrest, would continue on the case if he went to trial.
See Knox, 287 F.3d at 670; United States v. Lovett, 844 F.2d 487, 491–92 (7th Cir. 1988).
Counsel also considers whether Zondor could raise an appellate claim premised
on Shepard v. United States, 544 U.S. 13 (2006). In Shepard, the Supreme Court held that,
when determining whether a defendant’s earlier conviction for burglary was for a
“generic burglary” that counts as a violent felony under the Armed Career Criminal
Act, 18 U.S.C. § 924(e), a sentencing court is limited to considering “the statutory
definition, charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant assented.” Shepard,
No. 13‐2735 Page 3
544 U.S. at 16. We have recognized that Shepard’s constraint also applies to § 2252(b).
See United States v. Osborne, 551 F.3d 718, 721 (7th Cir. 2009). Not even the limited
Shepard inquiry is allowed, however, unless the statute defining the prior offense is
“divisible” in that it creates multiple crimes or multiple modes of committing a single
crime, only some of which trigger the sentencing enhancement. Descamps v. United States,
133 S. Ct. 2276, 2281–82 (2013). In such a situation, a court is permitted to look at the
documents listed in Shepard because the “court cannot tell from the statute itself exactly
what offense the defendant committed.” United States v. Taylor, 630 F.3d 629, 633 (7th
Cir. 2010).
At the sentencing hearing, the government sought to prove that Zondor’s prior
conviction in Illinois was for aggravated criminal sexual abuse of a minor who was 13
to 16 years of age. The government submitted two documents certified by the clerk of
the circuit court of Cook County: (1) a “Notification of Felony Disposition” stating that
“Jon Zondor”was convicted of aggravated criminal sexual abuse under ch. 38, ¶ 12‐16,
of the Illinois Revised Statutes, and (2) a “Statement of Conviction/Disposition” stating
that, in 1989, a “Jon W. Zondlor” was indicted on one count of aggravated criminal
sexual abuse under “38‐12‐16D.” (At that time, ch. 38, ¶ 12‐16(d), of the Illinois Revised
Statutes defined aggravated criminal sexual assault as an “act of sexual penetration or
sexual conduct” against “a victim who was at least 13 years of age but under 17 years of
age” and at least 5 years younger than the defendant. Under other subparts of ¶ 12‐16, a
person could be convicted of aggravated criminal sexual abuse involving a victim who
was not a minor, e.g., by using a dangerous weapon or by causing great bodily harm to
the victim. Because only some subparts of ¶ 12‐16 require a minor victim, the statute is
divisible. See United States v. Woods, 576 F.3d 400, 411 (7th Cir. 2009); United States v.
Mateen, 739 F.3d 300, 307 (6th Cir. 2014).) The government also introduced police
records and witness testimony establishing that Zondor is the “Jon W. Zondlor” named
in Statement of Conviction/Disposition.
Zondor argued that the government had not met its burden of proving the prior
conviction because, he insisted, the documents the prosecutor offered are inadequate
under Shepard. The Statement of Conviction/Disposition is inadequate, Zondor insisted,
because the defendant named in that document has a different surname. Moreover,
Zondor continued, the government had not submitted a charging document, plea
agreement, or transcript of a plea colloquy. But Zondor did not argue that the
conviction established by the government’s evidence was not one that could subject him
to an enhanced sentence under § 2252(b)(2).
No. 13‐2735 Page 4
The district judge rejected Zondor’s contention. The judge found that the
government’s documents and witnesses showed that Zondor and “Jon W. Zondlor” are
the same person. The judge then concluded that the Statement of Conviction/Disposition
establishes that Zondor previously had been convicted of aggravated criminal sexual
abuse of a minor. The judge emphasized that if the 10‐year statutory minimum did not
apply—meaning that 10 years would be the statutory maximum—he would have
imposed the same 120‐month sentence.
Counsel considers whether Shepard provides Zondor a basis to challenge the
district court’s finding that he, not someone else, is the person convicted in Cook
County in 1989. We agree with counsel that this potential challenge would be frivolous.
Shepard limits the evidence that may be considered in identifying a prior conviction, but
that opinion does not place any restriction on the evidence that may be used to decide if
the defendant is the person convicted. See United States v. Browning, 436 F.3d 780 (7th
Cir. 2006) (concluding that district judge properly relied on fingerprint evidence in
resolving whether defendant was the same person named in judgment of conviction).
Counsel also concludes that Zondor could not challenge the district court’s
determination that his prior conviction subjected him to the statutory enhancement.
Counsel asserts that the Notification of Felony Final Disposition and the Statement of
Conviction/Disposition unequivocally establish that Zondor was convicted under ch.
38, ¶ 12‐16(d), of the Illinois Revised Statutes. The latter document confirms that
Zondor was charged with aggravated criminal sexual abuse under ¶ 12‐16(d), but that
document does not rule out the possibility that he was convicted of a lesser offense. The
Notification of Felony Final Disposition partly resolves this question, showing that
Zondor indeed was convicted of aggravated criminal sexual abuse. But that document
does not establish that Zondor was convicted under subsection (d), which is a
significant omission because, as we have noted, the crime can be committed against a
victim who is not a minor. See ILL. REV. STAT. 1989, ch. 38, ¶ 12‐16(a), (e). And although
the probation officer recounts in the presentence investigation report that Zondor
committed the offense by sexually penetrating a 13‐year‐old girl, all that means is that
the underlying facts would have supported a conviction under ¶ 12‐16(d). See United
States v. Goodpasture, 595 F.3d 670, 672 (7th Cir. 2010) (“[F]ederal recidivist statutes . . .
ask what the defendant was convicted of, not what he did in fact.”); United States v.
Osborne, 551 F.3d 718, 721 (7th Cir. 2009).
Nonetheless, we agree with counsel’s conclusion that an appellate claim
challenging the application of the 10‐year statutory minimum would be frivolous. In the
No. 13‐2735 Page 5
district court Zondor was concerned only with the misspelling of his name in the Cook
County records; he did not argue that those documents create doubt about the nature of
his prior conviction. For that reason, he could prevail on appeal only by showing that
the district judge committed a plain error. See United States v. Aviles‐Solarzano, 623 F.3d
470, 475 (7th Cir. 2010). And, as counsel points out, the judge stated that he would
impose a 120‐month sentence whether or not the 10‐year statutory minimum applied.
Thus, we would not find plain error. See United States v. Foster, 701 F.3d 1142, 1157–58
(7th Cir. 2012); United States v. Hill, 645 F.3d 900, 912 (7th Cir. 2011).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.