NONPRECEDENTIAL DISPOSITION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 July 24, 2008
Decided July 31, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
Nos. 07‐1598 & 07‐2176
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 06 CR 30034
BILLY JOE BOWSER and Jeanne E. Scott,
MELISSA S. BOWSER, Judge.
Defendants‐Appellants.
ORDER
Undercover federal agents entered an internet chat room in which participants
exchanged child pornography. They downloaded two images of child pornography
from a computer with an internet protocol address registered to Melissa Bowser.
During a lawful search of their home, Melissa Bowser and her husband, Billy Joe
Bowser, confessed separately to viewing and downloading images of child
pornography and to permitting other collectors of child pornography to download
images from their computers through the chat room. Melissa admitted to transferring
Nos. 07‐1598 & 07‐2176 Page 2
images to Billy Joe, and a forensic evaluation of her computer revealed a child‐
pornography collection of 268 still images and four movies (each counting as 75 still
images), including one masochistic image of a girl between the ages of 10 and 12. Billy
Joe admitted to keeping in excess of 20,000 images on his computer and to sending a
school picture of his minor child to other participants; a forensic evaluation uncovered
images depicting violent acts and children under 12, and also disclosed that Billy Joe
had discussed in the chat room sex acts he said he performed with his child. Both
defendants pleaded guilty to three counts: one for receiving child pornography, see 18
U.S.C. § 2252A(a)(2)(A), one for shipping and transporting child pornography, see id.
§ 2252A(a)(1), and one for possessing child pornography, see id. § 2252A(a)(5)(B). Billy
Joe was sentenced to 240 months, within the applicable guidelines range of 235 to 293
months. Melissa was sentenced to 156 months’ imprisonment, the low end of her range
of 151 to 181 months.
Billy Joe and Melissa both filed notices of appeal, but their appointed lawyers
seek to withdraw under Anders v. California, 386 U.S. 738 (1967), because they cannot
discern a nonfrivolous issue to pursue. Counsel’s supporting briefs are facially
adequate. We invited the defendants to comment on the motions to withdraw, see CIR.
R. 51(b); Billy Joe has not replied, and Melissa’s response is limited to a request for
substitute counsel. Thus, we limit our review to the potential issues identified in
counsel’s briefs. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Both defendants have instructed counsel not to contest their guilty pleas, and
therefore counsel’s submissions appropriately omit any discussion of the adequacy of
the plea colloquies or the voluntariness of the pleas. See United States v. Knox, 287 F.3d
667, 670‐72 (7th Cir. 2002). The only potential issues identified by counsel for either
defendant concern the validity of the district court’s application of the sentencing
guidelines and the reasonableness of the defendant’s prison sentences.
The same probation officer dealt with both cases, and, using the November 2006
edition of the sentencing guidelines, she made the same adjustments in calculating each
defendant’s offense level. To the base offense level of 22, see U.S.S.G §§ 2G2.2(a)(2), the
probation officer added two levels because some images depicted minors under 12, see
id. § 2G2.2(b)(2), another five levels because the defendants had distributed child
pornography in expectation of receiving a thing of value in return, see id.
§ 2G2.2(b)(3)(B), four more levels because there were images depicting sadomasochistic
or other violent conduct, see id. § 2G2.2(b)(4), two levels because the defendants had
used a computer to commit the offenses, see id. § 2G2.2(b)(6), and, finally, five levels
Nos. 07‐1598 & 07‐2176 Page 3
because the number of images exceeded 600 (the actual number on Billy Joe’s computer
was more than 95,000), see id. § 3E1.1. A three‐level reduction for acceptance of
responsibility yielded a total offense level of 37. Billy Joe received three criminal history
points for two drunk‐driving convictions, resulting in a guidelines range of 235 to 293
months. Melissa had no previous convictions, so the probation officer’s calculations
would have resulted in an imprisonment range of 210 to 262 months. In the case of both
defendants, however, the probation officer wrongly concluded that the upper end of the
guidelines range was capped at 240 months because none of the counts of conviction
carried a maximum prison term exceeding 20 years. See U.S.S.G. § 5G1.2(d).
At sentencing Billy Joe objected to the five‐level upward adjustment for
exchanging images with the expectation that he would receive something of value in
return. Billy Joe testified that he obtained about 75% of his child‐pornography images
from another participant in the chat room, that he gave this participant a few images,
that neither of them expected the other to reciprocate, and that he had some control
over who accessed the chat room. Billy Joe also quibbled with the probation officer’s
calculation of the number of images that he possessed, although he conceded that the
total exceeded 1200 and acknowledged that 20,000 was the number he gave when his
home was searched. The district court adopted the probation officer’s calculations. The
court concluded that the upward adjustment for bartering was justified because Billy
Joe had admitted to obtaining the images through a website dedicated to trading child
pornography and to allowing other users to download his images, including the school
picture of his daughter. Billy Joe then asked for a sentence at the low end of the
guidelines range, if not below. As grounds, he argued that he had demonstrated a
desire to cooperate and get treatment and that his criminal history category overstated
the seriousness of his criminal history. The court responded that Billy Joe’s guidelines
calculations had included a downward adjustment for cooperation and that he
deserved the “maximum” possible sentence because he was deeply involved in creating
a market for images of abused children. Like the probation officer, however, the court
thought that 20 years was the upper limit, and after “weighing all of the statutory
factors,” see 18 U.S.C. § 3553(a), the court imposed concurrent sentences totaling 240
months.
Melissa also objected to the upward adjustment for bartering, which the district
court overruled because she had received and distributed images through the chat
room. The district court, though, sustained her objection to the number of images and
found her responsible only for the 568 total images found on her computer, which
reduced that upward adjustment by one level. See U.S.S.G. § 2G2.2(b)(7)(C). The
Nos. 07‐1598 & 07‐2176 Page 4
district court found that Melissa understood the scope of the offense and thus overruled
her objection that she deserved a four‐level reduction for being a minimal participant,
see id. § 3B1.2(a), but the court nonetheless characterized her involvement as minor and
granted a two‐level reduction, see id. § 3B1.2(b). With a total offense level of 34 and a
criminal history category of I, Melissa’s imprisonment range was 151 to 188 months.
Melissa then argued that she deserved a below‐guidelines sentence because, she
insisted, her range was higher than the median sentence for pornography and
prostitution offenses, she had no criminal history, and she suffered from severe
depression but had previously been unable to afford treatment. The district court
responded that this case involved more images, and more horrific images, than the
typical pornography case; that Melissa’s lack of a criminal history had been reflected in
the guidelines calculations; and that after the downward adjustment for her role in the
offense and the reduced upward adjustment for the number of images, her guidelines
range accurately reflected Billy Joe’s greater culpability. After considering several
statutory factors, see § 18 U.S.C. 3553(a), the court imposed concurrent terms totaling
156 months.
Counsel for both defendants correctly recognize that any challenge to the
guidelines calculations would be frivolous. The only potential argument perceived by
counsel for either defendant concerns the upward adjustment for exchanging child
pornography in the expectation of receiving a thing of value in return. But the
defendants downloaded and received images of child pornography in a chat room
dedicated to that purpose and therefore exchanged child pornography in return for a
“thing of value.” See U.S.S.G. § 2G2.2(b)(3)(B), & cmt. 1; United States v. Wainwright, 509
F.3d 812, 815‐16 (7th Cir. 2007).
As far as whether the sentences are reasonable, counsel for both defendants
correctly conclude that it would be frivolous to argue that the district court was
compelled to sentence either defendant below his or her guidelines range. We presume
that a sentence within the guidelines range is reasonable. See, e.g., United States v. Nitch,
477 F.3d 933, 937 (7th Cir. 2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). The district court addressed each defendant’s arguments for a lower sentence
and explained its reasons for rejecting them. Nothing more was required. See United
States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006); United States v. Rodriguez‐Alvarez, 425
F.3d 1041, 1046 (7th Cir. 2005). Moreover, Billy Joe received a lucky break because the
district court, although wanting to impose the “maximum” prison term under the
guidelines range, did not understand that it could impose consecutive sentences to
achieve that goal‐‐a term 53 months longer than the sentence he received. See U.S.S.G.
Nos. 07‐1598 & 07‐2176 Page 5
§ 5G1.2; United States v. Thompson, 523 F.3d 806, 814 (7th Cir. 2008). And because the
government did not cross‐appeal, we cannot increase his sentence. See Greenlaw v.
United States, 128 S. Ct. 2559, 2562 (2008).
Counsel’s motions to withdraw are GRANTED, and the appeals are DISMISSED.