Judges: PerCuriam
Filed: Jun. 26, 2013
Latest Update: Mar. 02, 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Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 June 26, 2013 Decided June 26, 2013 Before RICHARD A. POSNER, Circuit Judge JOEL M. FLAUM, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 12-3635 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Central District of Illinois. v. No. 12-10050-001 STEPHEN D. FLEMING, JR., J
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 June 26, 2013 Decided June 26, 2013 Before RICHARD A. POSNER, Circuit Judge JOEL M. FLAUM, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 12-3635 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Central District of Illinois. v. No. 12-10050-001 STEPHEN D. FLEMING, JR., Jo..
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NONPRECEDENTIAL DISPOSITION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 June 26, 2013
Decided June 26, 2013
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐3635
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 12‐10050‐001
STEPHEN D. FLEMING, JR., Joe B. McDade,
Defendant‐Appellant. Judge.
O R D E R
Stephen Fleming used an online file‐sharing program to distribute 47 files containing
child pornography to an undercover FBI agent. Fleming’s stash included an image of a
female toddler performing oral sex on an adult male and a video of a prepubescent female
bound at the hands and legs performing sex acts. Fleming, who is 36, pleaded guilty to
distributing child pornography. See 18 U.S.C. § 2252(a). The district court sentenced him to
180 months’ imprisonment, below his guidelines range of 210 to 240 months (based on a
total offense level of 37, a category I criminal history, and the statutory maximum, see id.
§ 2252(b)(1)). Fleming 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). Fleming has not accepted our invitation to comment on counsel’s motion. See CIR. R.
No. 12‐3635 Page 2
51(b). We confine our review to the potential issues identified in counsel’s facially adequate
brief. United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel first notes that Fleming does not want to challenge his guilty plea, and thus
counsel properly refrains from discussing the voluntariness of the plea or the district court’s
compliance with Federal Rule of Criminal Procedure 11. 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).
Counsel concludes, and we agree, that a challenge to the reasonableness of Fleming’s
prison sentence would be frivolous. As counsel notes, we would presume that the
below‐guidelines sentence is reasonable, see Rita v. United States, 551 U.S. 338, 350–51 (2007);
United States v. Klug, 670 F.3d 797, 800 (7th Cir. 2012), and counsel cannot identify any
reason to disturb that presumption. The district court adequately discussed the relevant
sentencing factors under 18 U.S.C. § 3553(a): The court emphasized the nature of the
offense, noting that “you are fixated on toddlers, the youngest of the young,” as well as the
need for deterrence, noting that “I not only want to impose a sentence that will deter you
from repeating this but other persons out there who may be so inclined because there is no
one to protect these young people.” The court reasonably found that regardless of Fleming’s
sparse criminal history, poor family life, and record of drug and alcohol addiction, these
considerations did not outweigh his propensity to get involved with such young children.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.