United States of America v. Dennis C. Eichelberger

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 15, 2005*
Decided July 18, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 04-2709
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENNIS C. EICHELBERGER,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Western Division
No. 03 CR 50048
Philip G. Reinhard,
Judge.
O R D E R
Dennis Eichelberger used the internet to trade images of minors—including
prepubescent children—engaged in sexually explicit conduct. He was indicted for
possessing 242 depictions of child pornography, see 18 U.S.C. § 2252A(a)(5)(B), and
for transporting the images in interstate commerce by computer, see id.
§ 2252A(a)(1). He pleaded guilty to the transportation count after executing a
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-2709 Page 2
written plea agreement that waived his rights to appeal his conviction or sentence
in exchange for concessions by the government.
Now Eichelberger argues that the district court erred by sentencing him
under the formerly mandatory guidelines regime, see United States v. Booker, 125
S. Ct. 738 (2005), and contends that a limited remand under United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005) is warranted. We cannot reach that issue,
however, because he waived his rights to appeal. Nothing in his plea agreement
provides an “escape hatch” in the event the guidelines were declared illegal, and, as
we recently held, Booker does not invalidate the parties’ bargain where there is no
such express provision. United States v. Bownes, 405 F.3d 634, 636–37 (7th Cir.
2005). Our opinion in United States v. Loutos, 383 F.3d 615 (7th Cir. 2004), which
does not discuss the effect of the appeal waiver in that case, cannot be read as
inconsistent with Bownes. Therefore, this appeal is DISMISSED.

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