United States of America v. Michael D. Dupoy

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 17, 2010
Decided March 18, 2010
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐2255
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MICHAEL D. DUPOY,
Defendant‐Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08 CR 10102
Michael M. Mihm,
Judge.
O R D E R
Michael Dupoy pleaded guilty to one count of receiving child pornography. See 18
U.S.C. § 2252A(a)(2). His offense level and criminal history score would have yielded a
guidelines imprisonment range of 360 months to life, but the statutory maximum for his
crime was 20 years. See id. § 2252A(b)(1). The district court sentenced him to 220 months.
The court imposed a below‐range term based on Dupoy’s assertion that he was molested as
a child by his father, but the judge was unwilling to give him the 120‐month term he
requested.
Dupoy appeals his sentence, but his appointed lawyer has concluded that the appeal
is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738 (1967). Dupoy
did not respond to counsel’s motion. See CIR. R. 51(b). We limit our review to the potential
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐2255 Page 2
issues counsel explores in his facially adequate brief. See United States v. Schuh, 289 F.3d
968, 973‐74 (7th Cir. 2002). Dupoy has not expressed a desire to challenge his guilty plea, so
counsel does not examine whether the plea was voluntary or the plea colloquy was
adequate. See United States v. Knox, 287 F.3d 667, 671‐72 (7th Cir. 2002).
Counsel recognizes that it would be frivolous to argue that the district court
committed procedural error at sentencing. The court calculated the guidelines range
correctly but did not treat it as mandatory. See Gall v. United States, 552 U.S. 38, 51 (2007).
The court addressed all of Dupoy’s arguments for a lower sentence and also evaluated the
sentencing factors outlined in 18 U.S.C. § 3553(a). In analyzing the nature of Dupoy’s
offense and his personal characteristics, see id. § 3553(a)(1), the court noted that he possessed
more than 1,500 images of child pornography and disseminated at least 700 images to other
pedophiles, that he was enthusiastic about downloading images despite knowing it was
illegal, that some of the images were egregious even in the context of child pornography,
that he engaged in this conduct over an extended period of time, that the children depicted
were victims, even if Dupoy did not have contact with them himself, that he claimed his
father had physically and sexually abused him, and that he had a substantial criminal
record. The court also emphasized that its sentence had to protect the public from Dupoy.
See id. § 3553(a)(2)(C).
Counsel next acknowledges that it would be frivolous for Dupoy to argue that his
prison sentence is unreasonable. Although the district court highlighted many aggravating
factors, the court still imposed a sentence below the guidelines range, and we presume that
sentence to be reasonable. United States v. Poetz, 582 F.3d 835, 837 (7th Cir. 2009); United
States v. Anderson, 580 F.3d 639, 651 (7th Cir. 2009). Given the district court’s thoughtful
application of the § 3553(a) factors, Dupoy cannot rebut that presumption. See United States
v. Noel, 581 F.3d 490, 500 (7th Cir. 2009).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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