United States v. Hausler

409 F. App'x 4
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 8, 2010
DocketNo. 09-3890
StatusPublished

This text of 409 F. App'x 4 (United States v. Hausler) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hausler, 409 F. App'x 4 (7th Cir. 2010).

Opinion

ORDER

Patrick Hausler was indicted for advertising, possessing, and distributing child pornography. He pleaded guilty to one count of advertising child pornography with intent to distribute, see 18 U.S.C. § 2251(d)(1)(A), and entered into a written plea agreement. He was sentenced to 25 years’ imprisonment followed by a life term of supervised release. He filed a notice of appeal, but his appointed counsel [7]*7seeks to withdraw as he states he was unable to identify any nonfrivolous grounds for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We confíne our review to the potential issues identified in counsel’s facially adequate brief and Hausler’s response. See CIR. R. 51(b); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).

Because the defendant has advised his lawyer that he wants to withdraw his guilty plea, counsel initially addressed whether there is any basis to challenge the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). His attorney points out that the district court failed to advise the appellant about his right to counsel, about the possibility of restitution, and about the elements of the charge to which he was pleading. The sentencing judge also failed to inquire whether Hausler’s plea was prompted by any threats or promises. We review the trial judge’s failures, set forth above, for plain error because defendant failed to seek to withdraw his plea in the trial court. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Sura, 511 F.3d 654, 658 (7th Cir.2007). We first address the sentencing judge’s failure to advise Hausler of his right to be represented by appointed counsel. See Fed.R.Ckim.P. 11(b)(1)(D). At the time he entered his plea of guilty the appellant was represented by appointed counsel, so he would have known of this right, and thus the omission was inconsequential. See United States v. Lovett, 844 F.2d 487, 492 (7th Cir.1988). Defense counsel also stated that the district judge failed to warn Hausler about a possible restitution order. See Fed.R.CrimP. 11(b)(1)(E). Because the trial court did not order restitution, this omission was immaterial. See United States v. Hayden, 389 Fed.Appx. 544 (7th Cir.2010) (holding that a district court’s failure to warn a defendant of the possibility of restitution is harmless error when no restitution is ordered). Next, the sentencing court failed to inquire of the defendant whether his plea was prompted by any threats or promises. See id. 11(b)(2). Defense counsel properly concluded that this is immaterial since the signed plea agreement recited that “no threats, promises, or representations” were made to induce Hausler to enter a plea of guilty. See United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001). Last, appellant’s attorney noted that the district judge failed to advise the defendant about the elements of the charge to which he was pleading guilty. See Fed.R.Crim.P. 11(b)(1)(G). This Court has “adopted a totality of the circumstances approach” when determining “whether the defendant fully understands the nature of the charge to which he is admitting guilt.” United States v. Fernandez, 205 F.3d 1020, 1025 (7th Cir.2000). The record clearly establishes that the appellant understood the charges against him. Not only did Hausler admit to the facts supporting his conviction but he also confirmed in his written plea agreement that his lawyer explained the elements of the crime charged and that he “fully [understood] the nature and elements of the crime.”

Appointed counsel next examined whether the appellant is able to challenge his sentence. Initially, the defendant’s attorney considered whether Hausler’s sentence exceeded the statutory maximum and thus violated the law. Because the terms of imprisonment and supervised release were within the statutory limits, see 18 U.S.C. §§ 2251(d)(1)(A), (e), 3583(k), there is no potential argument to challenge the legality of the sentence. Thus, appellant’s lawyer turned to possible errors in the guidelines calculations.

[8]*8 Counsel considered the question of whether the trial court committed error when it failed to give the defendant credit for acceptance of responsibility. The sentencing judge concluded that even though Hausler had timely entered his plea, he did not deserve the reduction because, while out on bond pending sentencing, he set up another computer and again advertised and distributed child pornography over the Internet, until a government agent discovered the defendant’s illegal computer use. We are of the opinion that the appellant’s conduct certainly gives ample support to the trial court’s conclusion that the defendant engaged in a continuous pattern of criminal activity, which is inconsistent with acceptance of responsibility. U.S.S.G. § 3E1.1, cmt. n. 1(b); United States v. Sellers, 595 F.3d 791, 793 (7th Cir.2010); United States v. McDonald, 22 F.3d 139, 141 (7th Cir.1994). Furthermore, Hausler’s attorney considered whether the sentencing judge’s conclusion that the defendant had engaged in a pattern of criminal activity was based on clearly erroneous facts. The government called two witnesses at the sentencing hearing who discussed appellant’s access to computers after he was released on bond, one of whom testified that he retrieved child pornography from Hausler’s computer during that time. Defendant neither objected to nor disputed this testimony, and we know of no basis to question the district court’s acceptance of the testimony as credible. United States v. Clark, 538 F.3d 803, 812-13 (7th Cir.2008). Accordingly, any argument that the trial judge relied on clearly erroneous facts would be frivolous.

Appointed counsel also considered whether the sentencing court treated the guidelines as mandatory or presumptively reasonable. See Nelson v. United States, 555 U.S. 350, 129 S.Ct. 890, 892, 172 L.Ed.2d 719 (2009); United States v. Mansoori, 480 F.3d 514, 521 (7th Cir.2007). But appellant’s lawyer properly concluded that there is no evidence in the record that the district judge committed either of these errors and any argument to the contrary would be frivolous.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
United States v. Vonn
535 U.S. 55 (Supreme Court, 2002)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
Nelson v. United States
555 U.S. 350 (Supreme Court, 2009)
United States v. Thao Dinh Le
173 F.3d 1258 (Tenth Circuit, 1999)
United States v. Ralph E. Lovett, Jr.
844 F.2d 487 (Seventh Circuit, 1988)
United States v. Kurt W. McDonald
22 F.3d 139 (Seventh Circuit, 1994)
United States v. Bradley Grover
119 F.3d 850 (Tenth Circuit, 1997)
United States v. Guillermo Fernandez
205 F.3d 1020 (Seventh Circuit, 2000)
United States v. Richard E. Driver
242 F.3d 767 (Seventh Circuit, 2001)
United States v. Larry D. Knox
287 F.3d 667 (Seventh Circuit, 2002)
United States v. David Malik
385 F.3d 758 (Seventh Circuit, 2004)
United States v. Edwin W. Blinn, Jr.
490 F.3d 586 (Seventh Circuit, 2007)
United States v. Mendoza
576 F.3d 711 (Seventh Circuit, 2009)
United States v. Sura
511 F.3d 654 (Seventh Circuit, 2008)
United States v. Liddell
543 F.3d 877 (Seventh Circuit, 2008)
United States v. Sellers
595 F.3d 791 (Seventh Circuit, 2010)
United States v. Shannon
518 F.3d 494 (Seventh Circuit, 2008)

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Bluebook (online)
409 F. App'x 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hausler-ca7-2010.