United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 17, 2007

Decided January 19, 2007

Before

 Hon. THOMAS E. FAIRCHILD, Circuit Judge

 Hon. WILLIAM J. BAUER, Circuit Judge

 Hon. KENNETH F. RIPPLE, Circuit Judge

No. 06-3063 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DELBERT R. HOLM,

Defendant-Appellant.

Appeal from the United States

District Court for the Central

District of Illinois

No. 01-10011-001

Michael M. Mihm, 

Judge.

O R D E R

Delbert Holm was convicted in 2002 of possessing child pornography, see 18

U.S.C. § 2252(a)(4)(B), and was initially sentenced to 59 months’ imprisonment and

3 years’ supervised release. When Holm appealed, we affirmed his conviction but

remanded for resentencing because the district court had miscalculated the

guidelines imprisonment range and imposed a condition of supervised release (a

total ban on Internet use) that was unduly restrictive. See United States v. Holm,

326 F.3d 872 (7th Cir. 2003). On remand the court recalculated the imprisonment

range and resentenced Holm to 46 months’ imprisonment and 3 years’ supervised

release, this time limiting the restriction on Internet use to a ban against receiving

or sending “sexually arousing material, including child pornography.” 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 06-3063 Page 2

Holm served his time in prison and began his term of supervised release in

June 2005. Less than a year later his probation officer found child pornography in

his home and petitioned for revocation of his supervised release. See U.S.S.G.

§ 7B1.2(a). After a hearing, the district court revoked Holm’s supervised release,

finding that he violated both the mandatory condition that he not commit further

crimes, see 18 U.S.C. § 3583(d), and a special condition that prohibited him from

possessing “any material, legal or illegal, that contains nudity or that depicts or

alludes to sexual activity or depicts sexually arousing material.” The court

calculated, based on a Grade B violation and a Category I criminal history, a

recommended imprisonment range of 4 to 10 months under the relevant policy

statements. See U.S.S.G. § 7B1.4(a). But, convinced that Holm would commit the

crime again, the court imposed a 24-month term of reimprisonment to be followed

by 12 months of further supervised release.

Holm filed a notice of appeal, but his appointed counsel now moves to

withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v.

California, 386 U.S. 738 (1967). We invited Holm to respond to counsel’s brief, see

Cir. R. 51(b), but he has not done so. Counsel’s supporting brief is facially

adequate, so we limit our review to the potential issues identified by counsel. See

United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002). 

Counsel first considers whether Holm could argue that the government failed

to adduce sufficient evidence that he violated a condition of his supervised release. 

Before revoking a term of supervised release, the district court must find by a

preponderance of the evidence that the defendant violated a condition of his release. 

See 18 U.SC. § 3583(e)(3); United States v. Trotter, 270 F.3d 1150, 1153 (7th Cir.

2001). At Holm’s revocation hearing, two probation officers testified that while

searching his home they found a stack of photographs of children under 12 engaged

in sexual acts and poses, as well as additional files containing child pornography on

Holm’s laptop computer. A detective from the FBI Cyber Crimes Task Force

testified that the laptop contained, all told, 398 images of nude children or children

engaged in lascivious acts. The detective added that all of those images were

downloaded onto the laptop after Holm was released from prison, and the district

court reasoned that Holm knew about the images because analysis of the hard drive

had shown that the files were accessed after they were created. Holm admitted

that he possessed the photographs—all of which were part of the evidence that led

to his 2002 conviction—but he maintained that the district court had authorized

him to retain the photographs for use on appeal. The court rejected this contention

as preposterous and noted, in any event, that Holm’s appeal was long over. 

Moreover, Holm’s explanation for having the photographs ignores the files that

were downloaded to his laptop after he was released from prison. Thus, we agree

with counsel that it would be frivolous for Holm to argue that the hearing evidence

did not establish by a preponderance that he again possessed child pornography
No. 06-3063 Page 3

contrary to both conditions of his supervised release. See United States v. Myers,

355 F.3d 1040, 1042 (7th Cir. 2004); 18 U.S.C. § 2252(a)(4)(B). 

Counsel next considers whether the term of reimprisonment could be

challenged on reasonableness grounds. We would uphold the additional prison term

unless it is “plainly unreasonable.” United States v. Carter, 408 F.3d 852, 854 (7th

Cir. 2005). The district court was required to consider the applicable policy

statements and the sentencing factors in 18 U.S.C. § 3553(a), see id., but the

imprisonment ranges set out in the policy statements are, and always have been,

advisory. See U.S.S.G. Ch. 7, Pt.A(1); Carter, 408 F.3d at 854; United States v.

Wallace, 458 F.3d 606, 610-11 (7th Cir. 2006). The district court chose to impose a

term above the range because Holm had again committed the very same crime, had

shown “no remorse,” and apparently saw nothing wrong with child pornography. 

The court was not persuaded that Holm should receive a shorter prison term

because he was 61 and in poor health, and instead the court felt compelled to

protect the public from Holm, whose swift recidivism confirmed for the court that,

without imprisonment, he would “find a way to go right back to doing this again.” 

The court also took into account the number of children and the repetitive

victimization of each from continuous dissemination and viewing of the images. As

in Carter, the district court adequately explained its reasons for imposing a longer

term of reimprisonment than that recommended by the guidelines. See Carter, 408

F.3d at 854-55 (concluding that defendant’s “pattern of serial conduct and of noncompliance with the requirements of supervised release” merited reimprisonment at

twice the recommended range). Accordingly we agree with counsel that it would be

frivolous to argue that Holm’s sentence is plainly unreasonable. 

We GRANT counsel’s motion to withdraw, and DISMISS the appeal.