NONPRECEDENTIAL DISPOSITION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 May 30, 2012
Decided June 7, 2012
Before
RICHARD D. CUDAHY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
Nos. 11‐3761 & 11‐3762
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
Nos. 1:11CR00027‐002 & 1:11CR00033‐001
DAVID RYAN BOSTIC,
Defendant‐Appellant. Jane Magnus‐Stinson,
Judge.
O R D E R
David Bostic pleaded guilty to 65 felony counts involving child pornography.
Initially he was indicted as part of an international ring whose members exploited very
young children to produce and share child pornography from late 2009 through February
2011. See 18 U.S.C. §§ 2251(d), (e), 2252(a)(2), (b)(1). Bostic alone also was charged by
information with sexual exploitation of a child and possession of child pornography.
See id. §§ 2251(a), 2252(a)(4)(B). The cases were consolidated, and in exchange for Bostic’s
guilty pleas the government agreed not to pursue further charges related to his five known
victims. Those victims ranged in age from 2 months to 4 years when they were molested.
The probation officer calculated a guidelines imprisonment range of life based upon a total
offense level of 52.
Nos. 11‐3761 & 11‐3762 Page 2
At sentencing Bostic conceded, through the appointed lawyer who also represents
him in this court, that the probation officer had correctly calculated the guidelines range.
The district judge reasoned that a stiff sentence was warranted because of the very young
age of Bostic’s victims, his repeated molestation and photographing of those victims over
the course of two years, his prior juvenile adjudication for molesting a child, and the size of
his collection of child pornography. The court imposed a total of 315 years’ imprisonment.
The judge concluded by noting that the lengthy sentence reflected the severity of Bostic’s
crimes and the need to protect children from him and would promote respect for the law
and deter others from committing similar crimes.
After consulting Bostic, counsel filed a notice of appeal from only the sentences in
the two cases. See 18 U.S.C. § 3742(a). The lawyer has concluded that any appellate claim
would be frivolous, however, and moves to withdraw. See Anders v. California, 386 U.S. 738
(1967). Bostic has responded to counsel’s submission, see CIR. R. 51(b), and we limit our
review to counsel’s facially adequate brief and Bostic’s response, United States v. Schuh, 289
F.3d 968, 973–74 (7th Cir. 2002).
Counsel first explores whether Bostic could claim that the district court committed
procedural error at sentencing. But counsel was present for Bostic’s sentencing, and even
after reviewing a transcript of that proceeding he is unable to identify any shortcoming
which would support a possible appellate claim. The lengthy transcript shows that Bostic
agreed to the judge’s application of the sentencing guidelines, that the court gave Bostic an
opportunity to call witnesses and to identify grounds in mitigation relevant to the factors in
18 U.S.C. § 3553(a), and articulated how those factors had influenced the final
sentence. See United States v. Abebe, 651 F.3d 653, 656 (7th Cir. 2011); United States v. Curb,
626 F.3d 921, 926 (7th Cir. 2010); United States v. Millet, 510 F.3d 668, 680 (7th Cir. 2007).
Counsel next posits that any challenge to Bostic’s within‐guidelines sentence on the
ground that it is substantively unreasonable would be frivolous. Any sentence that is within
a correctly calculated guidelines range receives a rebuttable presumption of reasonableness,
Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Johnson, 534 F.3d 690, 696 (7th
Cir. 2008), and counsel sees no avenue for rebuttal; nor do we. Three hundred fifteen years
imprisonment is obviously an extremely stiff sentence for a non‐capital offense. However,
assuming an adequate basis for these guidelines, the present record does not give us a
reason to question the district judge’s detailed explanation for why Bostic deserves this level
of punishment. So we agree with counsel’s assessment that challenging the sentence’s
substantive reasonableness would be frivolous.
Bostic, in his Rule 51(b) response, insists that the district judge imposed a disparate
sentence in violation of 18 U.S.C. § 3553(a)(6). But that provision addresses disparities
Nos. 11‐3761 & 11‐3762 Page 3
among defendants with similar records who have been found guilty of similar conduct, and
Bostic has not identified any comparators. See United States v. Durham, 645 F.3d 883, 897 (7th
Cir. 2011), cert. denied, 132 S. Ct. 1537 (2012).
Finally, Bostic levels a number of allegations about counsel’s performance, both in
the district court and in this court. Among Bostic’s accusations—all of them made for the
first time in this court—is that counsel coerced his guilty pleas by promising that he would
be sentenced to no more than 40 years in prison. That particular contention is arguably
beyond the scope Bostic’s appeals, see 18 U.S.C. § 3742(a), but even if we could consider a
claim of coerced guilty pleas in these direct appeals, we would not do so. This claim, as well
as Bostic’s other contentions about counsel’s performance, depend upon evidence that does
not exist in the present record and, thus, are better saved for a postconviction proceeding
where the record may be expanded. See Massaro v. United States, 538 U.S. 500, 504–05 (2003);
United States v. Persfull, 660 F.3d 286, 289 (7th Cir. 2011), petition for cert. filed, 60 U.S.L.W.
3529 (U.S. Feb 24, 2012) (11‐1060); Bethel v. United States, 458 F.3d 711, 716– 17 (7th Cir.
2006).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS these
appeals. Bostic’s motion to compel his counsel and the United States Attorney for the
Southern District of Indiana to produce discovery materials and other documents is
DENIED.