683 F.3d 348 (7th Cir. 2012), 11-2969, United States v. Konczak

Docket Nº:11-2969.
Citation:683 F.3d 348
Opinion Judge:WOOD, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Chad L. KONCZAK, Defendant-Appellant.
Attorney: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.
Judge Panel:Before FLAUM, WOOD, and TINDER, Circuit Judges.
Case Date:April 26, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 348

683 F.3d 348 (7th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Chad L. KONCZAK, Defendant-Appellant.

No. 11-2969.

United States Court of Appeals, Seventh Circuit.

April 26, 2012

Submitted April 11, 2012.

Page 349

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...

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