In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-2969

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

C HAD L. K ONCZAK,
                                          Defendant-Appellant.


            Appeal from the United States District Court
                 for the Central District of Illinois.
       No. 10-20087-001—Michael P. McCuskey, Chief Judge.



     S UBMITTED A PRIL 11, 2012—D ECIDED A PRIL 26, 2012




 Before F LAUM, W OOD , and T INDER, Circuit Judges.
  W OOD , Circuit Judge. Campus police officers at Lakeland
Community College in Mattoon, Illinois, observed Chad
Konczak using publicly available computer terminals
to download sexually explicit photos of young girls.
Konczak was arrested and pleaded guilty to accessing
an Internet website for the purpose of viewing child
pornography on that site, 18 U.S.C. § 2252A(a)(5)(b).
The district court calculated an advisory guidelines im-
2                                                No. 11-2969

prisonment range of 41 to 51 months and sentenced
Konczak to 45 months. Konczak has now filed a notice
of appeal, but his appointed lawyer seeks to withdraw
on the ground that all possible arguments are frivolous.
See Anders v. California, 

(1967). Konczak
opposes counsel’s motion. See C IR. R. 51(b). We confine
our review to the potential issues identified in counsel’s
facially adequate brief and Konczak’s response.
See United States v. Schuh, 

, 973-74 (7th
Cir. 2002).
  Counsel first considers whether Konczak could chal-
lenge the adequacy of the plea colloquy or the voluntari-
ness of his guilty plea. It is unclear, however, whether
counsel has discussed a challenge to the plea with
Konczak. In United States v. Knox, 

(7th Cir.
2002), we held that counsel “should not present (or even
explore in an Anders submission) a Rule 11 argument
unless they know after consulting their clients, and providing
advice about the risks, that the defendant really wants to
withdraw the guilty plea.” 

added).
Some of our nonprecedential orders might be read to
indicate that the burden rests on the client to alert
counsel about his desire to withdraw the plea, but that
is not what Knox said (and those orders are expressly
nonprecedential in any event). See, e.g., United States
v. Potts, 

(7th Cir. Feb. 22, 2012); United
States v. Arguijo-Cervantes, 

(7th Cir.
Feb. 15, 2012); United States v. Nuñez-Garcia, 455 F. App’x
698 (7th Cir. 2012). Knox instructs counsel both to
consult with the client and to provide advice about the
risks and benefits of any proposed course of action. Only
No. 11-2969                                               3

if, after counsel has taken that step, the defendant
confirms that he is not interested in withdrawing the
plea, may counsel refrain from exploring possible argu-
ments related to Rule 11.
  As we noted, we cannot tell whether that process oc-
curred in Konczak’s case. Despite this omission, how-
ever, there is no need for us to reject the Anders submis-
sion and require counsel to undertake the necessary
consultation. The information contained in counsel’s
brief and Konczak’s response, coupled with our own
review of the record, convince us that a challenge to
the plea would be frivolous. Counsel has not identified
any deficiency in the plea colloquy, and the transcript
shows that the district court substantially complied
with the requirements of Rule 11 and ensured that the
plea was voluntary. See F ED. R. C RIM. P. 11; United States
v. Bowlin, 

, 656-57 (7th Cir. 2008); United
States v. Blalock, 

, 688 (7th Cir. 2003).
  Counsel next considers whether Konczak could chal-
lenge his prison sentence but properly concludes that
such a challenge would be frivolous. As counsel notes,
we presume that a within-guidelines sentence is rea-
sonable, see Rita v. United States, 

, 347
(2007); United States v. Pape, 

, 746 (7th Cir.
2010), and counsel has not been able to identify any
reason to disregard that presumption. The district court
properly applied the sentencing factors in 18 U.S.C.
§ 3553(a), in particular noting as a mitigating factor
that Konczak had not downloaded images of children
engaged in sexual activity with other persons, or images
4                                             No. 11-2969

that were sadistic. But the court concluded that a
sentence within the guidelines range was appropriate
to provide just punishment and protect the public
from further crimes.
  In his Rule 51(b) response Konczak asserts that the
district court failed to acknowledge that much of what
he viewed on the Internet was not illegal. During
his allocution Konczak explained that he had begun by
looking at modeling websites featuring children who
were clothed, and only during the year before his
arrest did he view and download child pornography.
Yet the judge said nothing at sentencing suggesting that
he did not believe that Konczak had visited legal
sites before indulging his interest in child pornography,
nor did the judge say that Konczak should be
penalized for viewing legal sites. Instead, when Konczak
emphasized that he was viewing clothed models
before turning to child pornography—his statements
imply that the modeling sites drew him to child pornog-
raphy—the court clarified that Konczak was not denying
that he downloaded child pornography at Lakeland
Community College. Those images were the only ones
recovered by the government and the sole basis for the
prosecution and calculation of the guidelines range. Thus,
an argument that Konczak’s sentence was influenced
by confusing lawfully accessed images with child pornog-
raphy would be frivolous.
  Counsel’s motion to withdraw is G RANTED , and the
appeal is D ISMISSED.

                          4-26-12