Filed: Mar. 29, 2012
Latest Update: Feb. 22, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 March 28, 2012 Decided March 29, 2012 Before FRANK H. EASTERBROOK, Chief Judge RICHARD A. POSNER, Circuit Judge DIANE S. SYKES, Circuit Judge No. 11-3289 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:11CR00008-0
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 March 28, 2012 Decided March 29, 2012 Before FRANK H. EASTERBROOK, Chief Judge RICHARD A. POSNER, Circuit Judge DIANE S. SYKES, Circuit Judge No. 11-3289 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:11CR00008-00..
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NONPRECEDENTIAL DISPOSITION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 March 28, 2012
Decided March 29, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐3289
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:11CR00008‐001
JIMMY LEE COOK,
Defendant‐Appellant. Jane Magnus‐Stinson,
Judge.
O R D E R
When Jimmy Lee Cook was 40 years old, he pretended in writing to be an underage
male on YouTube.com and enticed an 11‐year‐old girl to create sexually explicit videos of
herself and upload them to the site. Cook then recorded the videos onto DVDs. Authorities
received a tip about the videos and Cook’s involvement, and eventually recovered four
DVDs containing child pornography when they searched Cook’s residence. Cook waived
indictment and pleaded guilty to an information charging him with receiving child
pornography, 18 U.S.C. § 2252(a)(2). The district court sentenced him to 160 months’
imprisonment. Cook filed a notice of appeal, but his appointed lawyer believes that the
appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744
(1967). Cook has not responded to counsel’s motion. See CIR. R. 51(b). We confine our
No. 11‐3289 Page 2
review to the points discussed in counsel’s facially adequate brief. See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002). Counsel advises that Cook does not wish to challenge
his guilty plea, and thus the lawyer appropriately omits discussion about the adequacy of
the plea colloquy and the voluntariness of the plea. See United States v. Knox, 287 F.3d 667,
670–72 (7th Cir. 2002).
Counsel notes that he sees no basis for an appellate claim about the guidelines
calculations, which Cook accepted without objection in the district court. That leaves
counsel with little else to discuss. Cook’s total offense level of 33 and Category I criminal
history yielded an imprisonment range of 135 to 168 months. In selecting 160 months, the
district court explained that Cook already had a misdemeanor conviction for assault and
battery arising from a sex offense committed against a six‐year‐old girl. The court reasoned
that other children need protection against the risk that Cook will commit more sex crimes.
See 18 U.S.C. § 3553(a). The court concluded that this consideration outweighed Cook’s
argument in mitigation that he had suffered many setbacks in life due to depression, his
ex‐wife’s infidelity, and the loss of his house. Counsel has considered challenging the
reasonableness of Cook’s prison term but has not identified any reason to disturb the
presumption of reasonableness applicable to Cook’s within‐guidelines sentence. See Rita v.
United States, 551 U.S. 338, 350–51 (2007); United States v. Moreno‐Padilla, 602 F.3d 802, 810
(7th Cir. 2010).
Counsel (who also represented Cook in the district court) explored the possibility of
claiming that his performance has been constitutionally deficient. But the lawyer has not
flagged any aspect of his representation that might be characterized as deficient, nor would
it be appropriate for counsel to challenge the adequacy of his own performance. See United
States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003). At all events, claims of ineffective assistance
are best saved for collateral review where the necessary factual predicate can be developed.
See Massaro v. United States, 538 U.S. 500, 504–05 (2003); United States v. Persfull, 660 F.3d 286,
299 (7th Cir. 2011). We agree with counsel that Cook’s appeal is frivolous. Counsel’s motion
to withdraw is GRANTED, and the appeal is DISMISSED.