NONPRECEDENTIAL DISPOSITION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 September 19, 2012
Decided September 26, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
Nos. 12‐1190 & 12‐1191
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
Nos. 1:11CR00169‐001 & 1:10CR00096‐001
TREVOR J. SHEA,
Defendant‐Appellant. William T. Lawrence,
Judge.
O R D E R
Trevor Shea captured live web images of girls as young as 13 exposing their breasts
and, after using online resources to identify the girls, blackmailed them with threats to send
the images to family and friends unless they sent him sexually explicit photos or performed
sexually explicit acts in front of a webcam. His commands often were sadistic, and some of
the girls were induced to participate in multiple webcam sessions, which Shea recorded. A
16‐year‐old victim from Indiana eventually alerted authorities, and Shea was charged with
four counts of sexually exploiting her. See 18 U.S.C. § 2251(a). He was released pending trial
but did not stop. He did the same thing to four more teens and was charged by information
(under a different case number) with three additional counts (one involving two girls filmed
together). In all, 10 minor girls in 8 states were induced to send Shea sexually explicit
images, and in one instance he acted on his threats by sending images of a 15‐year‐old to
Nos. 12‐1190 & 12‐1191 Page 2
her boyfriend. Shea victimized more than a dozen other young women as well, though all
were at least 18 years old. And he possessed a collection of child pornography involving
prepubescent children.
Shea, who was 19 when arrested, pleaded guilty to all counts. At sentencing he
withdrew his one objection to the probation officer’s guidelines calculations, which the
district court adopted without change. The court analyzed separately, under U.S.S.G.
§ 2G2.1, the charged counts plus Shea’s relevant conduct involving other minor victims,
see id. § 2G2.1(d). The court viewed as 13 independent “counts” the four original charges
involving the 16‐year‐old from Indiana, the additional charges involving the four girls
victimized while Shea was on pretrial release, and his uncharged blackmail of five other
minors. See id. §§ 1B1.2(c), 2G2.1(d)(1), 3D1.2(d). For each count the court applied a base
offense level of 32, id. § 2G2.1(a), and, for 11 of the 13 counts, added 4 levels on the
understanding that the “offense” involved images of sadistic conduct, id. § 2G2.1(b)(4). In
four instances the court added 2 levels because the victim was under age 16,
id. § 2G2.1(b)(1)(B), and since Shea had sent a sexually explicit photo of one of those girls to
her boyfriend, the court assessed on that count another 2 levels for distribution,
id. § 2G2.1(b)(3). On all of the counts the court penalized Shea for committing the same
crime while on pretrial release: For the violations committed before he was first arrested, the
court added 2 levels for obstruction of justice, id. § 3C1.1, and for those committed after he
was indicted, the court applied U.S.S.G. § 3C1.3, which mandates a 3‐level increase for
committing an offense while on pretrial release, see 18 U.S.C. § 3147. Then on the count with
the highest adjusted offense level—42—the court added 5 levels because of the multiple
violations, see U.S.S.G. §§ 3D1.1–4, and, finally, 5 more levels since Shea had engaged in a
pattern of activity involving prohibited sexual conduct, id. § 4B1.5(b).
Based on these calculations, the district court arrived at a total offense level of 52 and
a criminal history category of I, yielding a guidelines sentence of life in prison. The
government recommended that Shea be given a small break because he had helped
investigators identify the screen names of other blackmailers and revealed how he found
information about his victims. See U.S.S.G. § 5K1.1. As reflected in separate judgments
entered on the indictment and information, the court sentenced Shea to a total of 396
months: 360 months for each count of conviction, running concurrently, see 18 U.S.C.
§ 2251(e), plus a consecutive term of 12 months for each of those counts committed while on
pretrial release, see id. § 3147. Shea filed a notice of appeal from the sentence in each case,
and we have consolidated the two appeals. His appointed attorney (who also represented
Shea in the district court) asserts that the appeals are frivolous and seeks to withdraw.
See Anders v. California, 386 U.S. 738 (1967). Shea opposes this motion. See CIR. R. 51(b). We
confine our review to the potential issues identified in counsel’s facially adequate brief and
Shea’s response. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Nos. 12‐1190 & 12‐1191 Page 3
In his Anders brief counsel does not discuss any possible error in the district court’s
guidelines computations, but Shea has identified several possibilities, which we would
review for plain error, see United States v. Psihos, 683 F.3d 777, 782 (7th Cir. 2012); United
States v. Corona‐Gonzalez, 628 F.3d 336, 340 (7th Cir. 2010). Though we agree with Shea that
some of the guidelines calculations are questionable, an appeal based on those possible
errors would still be frivolous because, all else being equal, the corrections he seeks would
not change his guidelines sentence. And, in fact, the district court seems to have overlooked
other upward adjustments that more than offset any mistakes in the government’s favor.
Shea first considers challenging the 5‐level increase for engaging in a pattern of
activity involving prohibited sexual conduct, asserting that the increase does not apply to
the specific crime he committed, but this argument would be frivolous. The increase applies
when the defendant’s crime is a “covered sex crime,” the sexual conduct is “prohibited,”
and the conduct occurred on two or more instances. U.S.S.G. § 4B1.5(b)(1) & cmt. nn.2, 4.
These requirements are met: Sexual exploitation of a minor is a covered sex crime,
production of child pornography is prohibited sexual conduct, and he produced images of
each victim on two or more occasions. Id. § 4B1.5 cmt. nn. 2, 4; United States v. Schmeilski, 408
F.3d 917, 920 (7th Cir. 2005); United States v. Corp, 668 F.3d 379, 391–92 (6th Cir. 2012).
Shea next proposes to argue that the district court should not have the applied the 4‐
level increase for sadistic content to 11 of the 13 counts because, he says, many of the images
were not sadistic. See U.S.S.G. § 2G2.1(b)(4). He may be correct to an extent; his count of
eleven goes too far, but from what we can tell from the record, five of the counts apparently
did not involve sadistic or violent images. And since the 13 counts could not be grouped, see
U.S.S.G. § 3D1.2(d), the sadistic conduct from the other counts arguably cannot be imputed
to those five. See id. § 1B1.3; United States v. Newsom, 402 F.3d 780, 784 (7th Cir. 2005); United
States v. Fowler, 216 F.3d 459, 461–62 (5th Cir. 2000). But the increase applies to enough
counts that reducing by 4 the adjusted offense level for the others wouldn’t change Shea’s
combined offense level. The count with the highest offense level—which is the starting
point for determining the combined offense level, U.S.S.G. § 3D1.4—unquestionably
involves images of violent or sadistic conduct. Although the increase mistakenly applied to
some of the counts, in the end the 4‐level increase would still apply to 8 of the 13 counts.
That is enough to compel a 5‐level multiple‐count increase under § 3D1.4, which is the
greatest increase that can be given. See United States v. Szabo, 176 F.3d 930, 932–33 (7th Cir.
1999); United States v. Dawson, 1 F.3d 457, 462 (7th Cir. 1993).
Shea next considers arguing that he should not have received a 2‐level increase for
obstructing justice on the counts involving blackmail committed before he was arrested and
released on bond. Obstruction of justice is the willful impediment of the “investigation,
Nos. 12‐1190 & 12‐1191 Page 4
prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1. It is not apparent how
Shea’s second set of crimes impeded his prosecution for the first; the probation officer had
asserted in the presentence report that Shea’s crimes obstructed justice but did not explain
that conclusion, and neither the application notes nor case law suggests that the increase
should apply in this situation. See id. cmt. n.4. Adjustments under other guidelines seem
more appropriate: The court could withhold a reduction for acceptance of responsibility, or
impose an above‐guidelines sentence because the criminal history category underrepresents
the seriousness of the defendant’s criminal history and the likelihood that he would commit
another crime. See U.S.S.G. §§ 3E1.1, 4A1.3(a)(2)(D); United States v. King, 506 F.3d 532, 536
(7th Cir. 2007); United States v. Tai, 41 F.3d 1170, 1176 (7th Cir. 1994). Additionally, that Shea
committed crimes while on pretrial release is reflected by the 3‐level increase applied to the
second set of offenses. See 18 U.S.C. § 3147; U.S.S.G. § 3C1.3; United States v. Royer, 549 F.3d
886, 905 (2d Cir. 2008). So Shea could be right that the 2‐level increase should not have been
applied to the first set of offenses. But correcting this perceived error, even in combination
with correcting the possible error regarding sadistic content, would still not affect Shea’s
guidelines range. Because of the way the grouping guidelines work, taking away the 4‐level
increase for sadism and 2‐level increase for obstruction of justice for the appropriate counts
would result in a combined offense level just 2 levels lower, for a total of 50. Any number
greater than 42 will result in a guidelines sentence of life even for an offender with no
criminal history, U.S.S.G. ch. 5, pt. A (sentencing table), so the possible errors discussed by
Shea had no effect on his guidelines range.
Given this outcome we would not find plain error, and thus appellate challenges to
the district court’s application of § 2G2.1(b)(4) and § 3C1.1 would be frivolous. For
completeness, though, we note that Shea’s total offense level, even with the possible
application errors, is probably understated. He used a computer to communicate directly
with each of the victims and coerce them to engage in sexually explicit conduct, and so he
should have received an increase of 2 levels for each of the counts. U.S.S.G.
§ 2G2.1(b)(6)(B)(i) & n.4(B); United States v. Reaves, 253 F.3d 1201, 1205 (10th Cir. 2001)
(interpreting previous version of guideline); United States v. Brown, 237 F.3d 625, 628–29 (6th
Cir. 2001) (same). And his demands that the victims touch themselves sexually and
sadistically, and in one instance that a 15‐year‐old physically abuse her friend for Shea’s
gratification, warranted a 2‐level increase for the commission of sexual contact. See U.S.S.G.
§ 2G2.1(b)(2)(A) & n.2; United States v. Pawlowski, 682 F.3d 205, 207–08, 211–13 (3d Cir. 2012);
United States v. Aldrich, 566 F.3d 976, 979 (11th Cir. 2009); United States v. Shafer, 573 F.3d
267, 269, 277–78 (6th Cir. 2009).
All that remains is the length of Shea’s overall sentence, and counsel considers
whether Shea could argue that 33 years is unreasonable. But that term is significantly below
the guidelines sentence and entitled to a presumption of reasonableness. See Rita v. United
Nos. 12‐1190 & 12‐1191 Page 5
States, 551 U.S. 338, 347 (2007); United States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010).
Counsel has not identified any basis to set aside that presumption, nor can we. Looking to
the factors in 18 U.S.C. § 3553(a), the district court acknowledged that Shea was relatively
close in age to the victims, but emphasized the seriousness of the offenses, Shea’s lack of
compassion toward his victims, and the need to protect the public.
Shea considers impugning the performance of his attorney (despite having sung
counsel’s praises during sentencing). He asserts that his attorney refused to object to the
guidelines calculations on the grounds discussed in his Rule 51(b) response, did not provide
him enough time to review the final version of the presentence report, and failed to provide
a letter for the district judge to weigh at sentencing. What matters is counsel’s overall
performance, see Bland v. Hardy, 672 F.3d 445, 451 (7th Cir. 2012); Atkins v. Zenk, 667 F.3d
939, 945 (7th Cir. 2012), and we can envision a lawyer bypassing some objections that, as in
this case, could prompt the government to look more closely at other adjustments
apparently overlooked by the probation officer. In any event, if there is a ground for
questioning the quality of counsel’s assistance, that claim would be more appropriately
pursued in a collateral proceeding where a factual record could be developed. Massaro v.
United States, 538 U.S. 500, 504–05 (2003); United States v. Persfull, 660 F.3d 286, 299 (7th Cir.
2011). And certainly Shea’s current lawyer cannot be expected to challenge his own
performance. See United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
The motion to withdraw is GRANTED, and the appeals are DISMISSED.