United States of America v. Justin Moore

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2008
Decided May 28, 2008
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐2349
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JUSTIN MOORE,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 2: 05 CR 188 PS
Philip P. Simon,
Judge.
O R D E R
Undercover agents discovered Justin Moore in an online chatroom where he
advertised “100%preTeenGirlSexPics.” An investigation revealed that Moore ran a server
that contained approximately 13,000 single‐image files and 30 video files containing child
pornography, including pictures of girls as young as 5 years old. As the administrator of
this server, Moore allowed other users to access the images on the server in exchange for
uploading similar images or videos. Moore pleaded guilty to one count of distributing
child pornography and one count of receiving child pornography in violation of 18 U.S.C.
§ 2252(a)(2), and the district court sentenced him to 210 months’ imprisonment.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 3 --

No. 07‐2349 Page 2
Moore appeals, but his appointed counsel has moved to withdraw because he cannot
discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). We
invited Moore to respond to counsel’s motion, see CIR. R. 51(b), but he has not submitted a
response. Our review is limited to the potential issues identified in counsel’s facially
adequate brief. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Moore informed counsel that he does not want his guilty pleas set aside, and so
counsel appropriately omits from his brief any discussion of the adequacy of the plea
colloquy or the voluntariness of the pleas. See United States v. Knox, 287 F.3d 667, 670‐72 (7th
Cir. 2002). Counsel first considers whether Moore could challenge the reasonableness of his
sentence. Based on the pre‐sentence report, the district court calculated Moore’s base level
offense level to be 40, see U.S.S.G. § 2G2.2, and then subtracted three levels for acceptance of
responsibility, see id. § 3E1.1. Moore did not have any criminal history, and the resulting
total offense level of 37 yielded an imprisonment range of 210 to 262 months.
Counsel examines whether Moore could challenge the upward adjustment for
distribution of child pornography in exchange for a thing of value, see U.S.S.G.
§ 2G2.2(b)(3)(B), to which he objected at sentencing. We review a district court’s findings of
fact at sentencing for clear error. See United States v. Choiniere, 517 F.3d 967, 973 (7th Cir.
2008). We agree with counsel that any such challenge would be frivolous because the
guidelines specifically note that child pornographic material is a “thing of value,” see
U.S.S.G. § 2G2.2 cmt. 1, and here Moore expected to receive pornographic images and
videos in exchange for allowing users to view the images he already had. Counsel next
considers whether Moore could challenge the upward adjustment for sadistic or
masochistic images, see id. § 2G2.2(b)(4). Moore also objected to this upward adjustment at
sentencing, arguing that he did not intend to obtain such images. But counsel correctly
concludes that any such argument would be frivolous because the adjustment applies
“regardless of whether the defendant specifically intended to possess, receive, or distribute
such materials.” See id. § 2G2.2 comment. (n. 2).
Counsel also examines whether Moore could challenge his sentence as unreasonable,
and he acknowledges that a sentence within the properly calculated guidelines range is
entitled to a presumption of reasonableness on appeal. See United States v. Anderson, 517
F.3d 953, 966 (7th Cir. 2008); United States. v. Harvey, 516 F.3d 553, 556 (7th Cir. 2008). At
sentencing the district court concluded that a sentence below the suggested guidelines range
was not warranted in this case because of the seriousness of Moore’s crime, which
perpetuated the abuse of children, and because of the need to deter such conduct in the
future. The district court gave meaningful consideration to the § 3553(a) factors, and
therefore we agree with counsel that any argument challenging the reasonableness of
Moore’s sentence would be frivolous. See United States v. Rita, 127 S. Ct. 2456, 2462‐63

-- 2 of 3 --

No. 07‐2349 Page 3
(2007); see also United States v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008). Accordingly, we
GRANT counsel’s motion to withdraw and DISMISS the appeal.

-- 3 of 3 --