United States of America v. Dustin T. McClaskey

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 12, 2010
Decided May 13, 2010
Before
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐3310
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DUSTIN T. M CCLASKEY,
Defendant‐Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 08–cr‐10077‐001
Joe Billy McDade,
Judge.
O R D E R
Dustin McClaskey pleaded guilty to one count each of possessing and producing
child pornography, 18 U.S.C. §§ 2252A(a)(5)(B), 2251(a), and to a forfeiture count stemming
from those offenses, id. § 2253(a), (b). The district court imposed concurrent sentences of
120 months’ imprisonment on the possession charge (the statutory maximum), id.
§ 2252A(b)(2), and 180 months’ imprisonment on the production charge (the mandatory
minimum), id. § 2251(e), followed by a lifelong term of supervised release. McClaskey
appeals, but his appointed attorney has concluded that the appeal is frivolous and moves to
withdraw under Anders v. California, 386 U.S. 738 (1967). McClaskey did not respond to our
invitation to comment on counsel’s submission, see CIR. R. 51(b). Considering only the issue
presented in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973‐74
(7th Cir. 2002), we grant the motion to withdraw and dismiss the appeal.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐3310 Page 2
McClaskey does not want his guilty plea vacated, so counsel appropriately refrains
from discussing possible arguments about the voluntariness of the plea or the adequacy of
the plea colloquy. See United States v. Knox, 287 F.3d 667, 671‐72 (7th Cir. 2002).
Instead, the sole issue identified by counsel is whether McClaskey could challenge
his prison or supervised‐release terms on grounds of reasonableness. Counsel concludes
that any argument along these lines would be frivolous, and we agree. McClaskey’s 180‐
month prison term was the minimum sentence allowed under § 2251(e), and absent a
government motion to reduce the sentence based on substantial assistance, see 18 U.S.C.
§ 3553(e), the district court lacked authority to impose a lower term of imprisonment.
Regarding the period of supervised release, the statute authorizes a lifetime of supervision
for child pornography offenses, id. § 3583(k), and the policy statement accompanying the
relevant guidelines provision recommends that the maximum term be imposed in such
cases, see U.S.S.G. § 5D1.2(b)(2) (policy statement); United States v. Allison, 447 F.3d 402, 405
(5th Cir. 2006); United States v. Hayes, 445 F.3d 536, 537 (2d Cir. 2006). Moreover, the district
court adequately considered not only this policy statement, but also the other factors
required by § 3583(c) and § 3553(a), including McClaskey’s relation to the victims, see
§ 3553(a)(1). Because the district court properly applied the guidelines and § 3553(a) in
determining the duration of McClaskey’s supervised release, we would presume that
determination to be reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007). And since
counsel gives us no reason to rebut that presumption, any challenge to McClaskey’s
sentence would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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