United States v. Konczak

• Decision Date: 26 April 2012
• Docket Number: No. 11–2969.,11–2969.
• Citation: 683 F.3d 348
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Chad L. KONCZAK, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

683 F.3d 348

UNITED STATES of America, Plaintiff–Appellee,

v.Chad L. KONCZAK, Defendant–Appellant.

No. 11–2969.

United States Court of Appeals,Seventh Circuit.

Submitted April 11, 2012.

Decided April 26, 2012.

Elham M. Peirson, Attorney, Office of the United States Attorney, Urbana, IL, for Plaintiff–Appellee.

Mark S. Rosen, Attorney, Rosen & Holzman, Waukesha, WI, for Defendant–Appellant.

Before FLAUM, WOOD, and TINDER, Circuit Judges.

WOOD, 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 imprisonment 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, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Konczak opposes counsel's motion. See Cir. 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 challenge the adequacy of the plea colloquy or the voluntariness 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 Some of our nonprecedential orders might be read to indicate that the burden rests on the client to alert counsel about his desire to withdraw the plea, but that is not what Knox said (and those orders are expressly nonprecedential in any event).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, 456 Fed.Appx. 602 (7th Cir.2012); United States v. Arguijo–Cervantes, 461 Fed.Appx. 513, 2012 WL 475928 (7th Cir. Feb. 15, 2012); United States v. Nunez–Garcia, 455 Fed.Appx. 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 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 arguments related to Rule 11.

As we noted, we cannot tell whether that process occurred in Konczak's case. Despite this omission, however, there is no need for us to reject the Anders submission 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 Fed.R.Crim.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 challenge his prison sentence but properly concludes that such a challenge would be frivolous. As counsel notes, we presume that a within-guidelines sentence is reasonable, see Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (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...