NONPRECEDENTIAL DISPOSITION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. 13‐3434
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 3:13CR00062–01
DAVID A. ROEHL, Barbara B. Crabb,
Defendant‐Appellant. Judge.
O R D E R
While on probation in Wisconsin for possessing child pornography in violation
of state law, David Roehl was caught using a computer, which was prohibited by the
conditions of his release. Authorities searched the computer and found hundreds of
images of child pornography. Roehl’s state probation was revoked, and he was charged
in federal court with possessing visual images depicting, and produced using, minors
engaged in sexually explicit conduct. See 18 U.S.C. § 2252(a)(4).
Roehl pleaded guilty, and at sentencing the district court calculated a guidelines
imprisonment range of 130 to 162 months based on a total offense level of 28 and
criminal‐history category of V. But the court, guided by U.S.S.G. § 5K2.0(b)(2), accepted
No. 13‐3434 Page 2
Roehl’s argument that the offense level is exaggerated by the 2‐level upward
adjustment he received under U.S.S.G. § 2G2.2(b)(6) for using a computer, since most
child pornography crimes involve use of a computer. Without that increase, Roehl’s
imprisonment range would have been 120 to 137 months (the statutory minimum is 10
years because Roehl previously was convicted in Wisconsin of possessing child
pornography, see 18 U.S.C. § 2252(b)(2) (2006); WIS. STAT. § 948.12; United States v.
Osborne, 551 F.3d 718, 721 (7th Cir. 2009)). The district court sentenced him to 120
months to run consecutively to his undischarged term of imprisonment in Wisconsin.
Roehl filed a notice of appeal, but his newly appointed attorney has concluded
that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S.
738, 744 (1967). Roehl has not responded to counsel’s submission. 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). Roehl has told his attorney
that he does not want his guilty plea set aside, so counsel properly omits discussion
about the adequacy of the plea colloquy and the voluntariness of the plea. See United
States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).
Counsel has not identified any basis to disturb the district court’s application of
the sentencing guidelines. That leaves only the possibility of challenging the
reasonableness of Roehl’s prison sentence, but counsel properly concludes that any
argument would be frivolous. Ten years is the statutory minimum, see 18 U.S.C.
§ 2252(b)(2), and the district court lacked the authority to give him less, see United States
v. Zuno, 731 F.3d 718, 724 (7th Cir. 2013) (“A district court lacks discretion to impose a
sentence below the statutory mandatory minimum.”); United States v. Douglas, 569 F.3d
635, 636 (7th Cir. 2009) (same). Furthermore, a challenge to the consecutive nature of the
sentence would be frivolous since the guidelines recommend that a consecutive
sentence be imposed when the defendant was on probation at the time of the offense,
see U.S.S.G. § 5G1.3(c) cmt. n.3(C); United States v. Broadnax, 536 F.3d 695, 702 (7th Cir.
2008), and Roehl’s Wisconsin probation was revoked because of conduct reflected in the
federal indictment.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.