United States v. Chad Konczak

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, 386 U.S. 738 (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, 289 F.3d 968, 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, 287 F.3d 667 (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.” Id. at 671 (emphasis 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Some of our nonprecedential orders might be read to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nonprecedential in any event).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, 2012 WL 562189 (7th Cir. Feb. 22, 2012); United

States v. Arguijo-Cervantes, 2012 WL 475928 (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, 534 F.3d 654, 656-57 (7th Cir. 2008); United

States v. Blalock, 321 F.3d 686, 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, 551 U.S. 338, 347

(2007); United States v. Pape, 601 F.3d 743, 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