NONPRECEDENTIAL DISPOSITION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 February 3, 2022
Decided February 7, 2022
Before
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
CANDACE JACKSON‐AKIWUMI, Circuit Judge
No. 21‐1828
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of
Indiana, Indianapolis Division.
v. No. 1:18‐cr‐00359
JEFFREY KRAMER, Richard L. Young,
Defendant‐Appellant. Judge.
ORDER
After he persuaded a 17‐year‐old girl he met online to provide him with sexually
explicit images, Jeffrey Kramer pleaded guilty to sexual exploitation of a minor,
18 U.S.C. § 2251(a), coercion and enticement of a minor, id. § 2422(b), and possession of
child pornography, id. § 2252(a)(4)(B). He was sentenced to 30 years in prison and
lifetime supervised release. Although his plea agreement contained a broad appeal
waiver, Kramer filed a notice of appeal. His appointed counsel asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Counsel’s
brief explains the nature of the case and addresses potential issues that an appeal of this
No. 21‐1828 Page 2
kind might involve. Because his analysis appears thorough, and Kramer has not
responded to counsel’s motion, see CIR. R. 51(b), we limit our review to the issues
counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Kramer did not attempt to withdraw his plea at his sentencing hearing but has
informed counsel that he wishes to challenge it on appeal. See United States v. Konczak,
683 F.3d 348, 349 (7th Cir. 2012). Counsel therefore considers whether Kramer has
grounds to make such a challenge and addresses, specifically, one apparent error in the
plea agreement. The agreement includes a discrepancy over whether Kramer was
pleading guilty to Count 2 (which was supported by a still image of a contusion on the
victim’s buttocks) or Count 3 (which was supported by an image of the victim posing
nude in front of a mirror) of the indictment. Kramer agreed to plead guilty to Count 2
(Plea Agreement, at 2), but the plea agreement sets forth a factual basis that identifies
the image relating to Count 3. (Id. at 17–18.) The plea agreement also refers to Count 3
rather than Count 2 in listing the elements and penalties, though they are identical for
both counts. (Id. at 2–3.)
Counsel appropriately concludes that any challenge to the voluntariness of
Kramer’s plea would be frivolous. To challenge the plea on this basis, Kramer would
bear the burden of showing a reasonable probability that, but for the error, he would
not have entered the plea. See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
But as counsel explains, Kramer would not be able to meet this burden. Counts 2 and 3
both charged a violation of the same statute, § 2251(a), so Kramer was not misled about
the elements or penalties of Count 2. Moreover, at the plea colloquy, the court did not
conflate the description of the two counts, and Kramer confirmed that the particular
image which in fact supported Count 2 did provide a factual basis for his guilt. Lastly,
the court conducted a thorough plea colloquy that substantially complied with Rule 11
of the Federal Rules of Criminal Procedure. See Konczak, 683 F.3d at 349.
Counsel next considers whether Kramer could challenge his sentence but
correctly concludes that his appeal waiver forecloses any challenge. In his plea
agreement, Kramer waived his right to appeal his conviction and any sentence under 40
years’ imprisonment. (His sentence was 30 years.) The appeal waiver stands or falls
with the underlying guilty plea. United States v. Nulf, 978 F.3d 504, 506 (7th Cir. 2020).
Further, counsel correctly rejects any argument that an exception to the appeal waiver
could apply. Kramer’s sentence does not exceed the statutory maximum of life
imprisonment, and there is no suggestion in the record that it was based on
constitutionally impermissible factors.
No. 21‐1828 Page 3
Finally, counsel considers and reasonably rejects arguing that Kramer’s trial
counsel was ineffective. Ineffective‐assistance claims are best raised on collateral
review, where an evidentiary foundation can be developed. Massaro v. United States,
538 U.S. 500, 504–05 (2003); United States v. Cates, 950 F.3d 453, 456–57 (7th Cir. 2020).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.