United States v. Zondor

561 F. App'x 527
Court of Appeals for the Seventh Circuit·Decided April 10, 2014·No. No. 13-2735·Published

Opinion

ORDER

The adult grandson of Jon Zondor’s girlfriend found child pornography on a CD and on an external hard drive he had stolen from Zondor. He told his mother about the discovery, and she notified the FBI. Federal agents executed a search warrant at Zondor’s home and found 9,433 images and 248 videos of child pornography on his computer and storage media. Zondor pleaded guilty without a plea agreement to one count of possessing child pornography. See 18 U.S.C. § 2252(a)(4). At sentencing, the district judge relied on records from Illinois authorities to conclude that Zondor previously had been convicted in Cook County of aggravated criminal sexual abuse of a minor, see Ill. Rev.Stat. 1989, ch. 38, ¶ 12-16(d), which made him subject to a 10-year statutory minimum sentence, see 18 U.S.C. § 2252(b)(2). The judge sentenced Zondor to 120 months, well below the guidelines range of 151 to 180 months.

Zondor filed a notice of appeal, but his lawyer asserts that the appeal is frivolous [529] and seeks to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Zondor has not responded to his lawyer’s motion. See CIR. R. 51(b). Counsel has submitted a brief that explains the nature of the case and addresses the issues that this kind of case might be expected to involve. Because this analysis appears to be thorough, we limit our review to the subjects that counsel has discussed. See United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996).

Counsel does not say whether Zondor wants to challenge his guilty plea, but our review of the record convinces us that any appellate claim would be frivolous. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). During the plea colloquy, the district court neglected to inform Zondor that his statements made under oath during the colloquy could be used against him in a prosecution for perjury, Fed.R.Crim.P. 11(b)(1)(A), and that he would have a right to counsel should he elect to go to trial, Fed.R.Crim.P. 11(b)(1)(D). But Zondor never moved to withdraw his guilty plea on the basis of these omissions or on any other ground, and thus our review would be limited to plain error. See United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Davenport, 719 F.3d 616, 618 (7th Cir.2013). The judge’s failure to admonish Zondor that his sworn statements might be used against him in the future could not have been plain error because no perjury prosecution is pending or contemplated. See United States v. Blalock, 321 F.3d 686, 689 (7th Cir.2003); United States v. Graves, 98 F.3d 258, 259 (7th Cir.1996). And although the court did not inform Zondor that his right to counsel would extend to all proceedings including trial, neither could this omission have been plain error because Zondor was represented by appointed counsel and almost certainly knew that his lawyer, who was appointed three days after his arrest, would continue on the case if he went to trial. See Knox, 287 F.3d at 670; United States v. Lovett, 844 F.2d 487, 491-92 (7th Cir.1988).

Counsel also considers whether Zondor could raise an appellate claim premised on Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2006). In Shepard, the Supreme Court held that, when determining whether a defendant’s earlier conviction for burglary was for a “generic burglary” that counts as a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a sentencing court is limited to considering “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16, 125 S.Ct. 1254. We have recognized that Shepard’s constraint also applies to § 2252(b). See United States v. Osborne, 551 F.3d 718, 721 (7th Cir.2009). Not even the limited Shepard inquiry is allowed, however, unless the statute defining the prior offense is “divisible” in that it creates multiple crimes or multiple modes of committing a single crime, only some of which trigger the sentencing enhancement. Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281-82, 186 L.Ed.2d 438 (2013). In such a situation, a court is permitted to look at the documents listed in Shepard because the “court cannot tell from the statute itself exactly what offense the defendant committed.” United States v. Taylor, 630 F.3d 629, 633 (7th Cir.2010).

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United States v. Zondor, 561 F. App'x 527 (7th Cir. 2014).

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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)
Shepard v. United States
544 U.S. 13 (Supreme Court, 2005)
United States v. Aviles-Solarzano
623 F.3d 470 (Seventh Circuit, 2010)
United States v. Taylor
630 F.3d 629 (Seventh Circuit, 2010)
United States v. Hill
645 F.3d 900 (Seventh Circuit, 2011)
United States v. Ralph E. Lovett, Jr.
844 F.2d 487 (Seventh Circuit, 1988)
United States v. Dale E. Graves
98 F.3d 258 (Seventh Circuit, 1996)
United States v. James R. Wagner
103 F.3d 551 (Seventh Circuit, 1996)
United States v. Larry D. Knox
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United States v. Terrance E. Blalock
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United States v. Christopher Mateen
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