NONPRECEDENTIAL DISPOSITION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 November 5, 2012
Decided November 5, 2012
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐1299
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 4:11CR40056‐001‐JPG
ERIC L. LOWE, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
Eric Lowe pleaded guilty to possession of child pornography, 18 U.S.C.
§ 2252(a)(4)(B), after an employee at a computer‐repair store discovered images of naked
children on Lowe’s laptop and contacted police. The district court sentenced Lowe to 60
months’ imprisonment, below the guidelines range of 97 to 120 months. Lowe filed a notice
of appeal, but his appointed lawyer has moved to withdraw because she cannot identify a
nonfrivolous issue to pursue. See Anders v. California, 386 U.S. 738 (1967). Lowe has not
responded to counsel’s motion. See CIR. R. 51(b). We confine our review to the potential
issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968,
973–74 (7th Cir. 2002).
No. 12‐1299 Page 2
We note that counsel omits discussion about the change‐of‐plea hearing but does not
say that Lowe, after consultation, elected to forgo any challenge to his guilty plea. See United
States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671
(7th Cir. 2002). But we are convinced after reviewing the transcript of the plea colloquy that
any challenge to the colloquy or the voluntariness of Lowe’s guilty plea would be frivolous.
See Konczak, 683 F.3d at 349. Lowe did not move to withdraw his guilty plea in the district
court, so he would have to establish plain error to have it overturned on appeal. See United
States v. Sura, 511 F.3d 654, 658 (7th Cir. 2007). During the plea colloquy the district court
neglected to advise Lowe that he could be prosecuted for perjury if he lied under oath. See
FED R. CRIM. P. 11(b)(1)(A). But that omission could not have harmed Lowe because no
prosecution for perjury is pending or contemplated. See United States v. Blalock, 321 F.3d 686,
689 (7th Cir. 2003); United States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996). And in any case, a
plea colloquy is sufficient if it substantially complies with Rule 11, as this colloquy did.
See Konczak, 683 F.3d at 349; United States v. Akinsola, 105 F.3d 331, 334 (7th Cir. 1997).
In her Anders submission, counsel considers whether Lowe could challenge his
sentence but properly concludes that the possible arguments would be frivolous. Lowe did
not object to the calculation of his guidelines range, and counsel has not identified any
errors now. Lowe’s below‐range sentence is presumed reasonable, see United States v. Poetz,
582 F.3d 835, 837 (7th Cir. 2009); United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008), and
we agree with counsel that the record presents no basis to set that presumption aside. The
district court thoroughly considered the sentencing factors in 18 U.S.C. § 3553(a), noting on
one hand Lowe’s lack of criminal history and a psychiatrist’s opinion that his risk of
recidivism was minimal, but on the other hand his possession of more than 2400 images of
child pornography and the psychiatrist’s diagnosis of pedophilia.
Counsel also considers a potential claim that her representation of Lowe at the
sentencing hearing was constitutionally deficient. But counsel correctly concludes that an
ineffective‐assistance claim is best raised in a collateral proceeding under 28 U.S.C. § 2255,
especially where, as here, the appellate lawyer who would raise the claim also represented
the defendant in the district court. See Massaro v. United States, 538 U.S. 500, 504–05 (2003);
United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.