United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 4, 2011

Decided May 5, 2011

Before

ILANA DIAMOND ROVNER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 10-3431

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GORDON L. CRAIG,

Defendant-Appellant.

Appeal from the United States District

Court for the Central District of Illinois.

No. 4:10-40028-001

Michael M. Mihm,

Judge.

O R D E R

Gordon Craig used babysitting gigs, family relationships, and friendships with

parents to gain access to young children, whom he molested, performed oral sex on, and

photographed before trading the images online. After he was caught and indicted, he

pleaded guilty to four counts of sexually exploiting children. See 18 U.S.C. § 2251(a). The

district court sentenced him to the 30-year statutory maximum on each count under

§ 2251(e), to be served concurrently, followed by a lifetime of supervised release; absent the

statutory maximum, his guideline sentence would have been life imprisonment on each

count, given his adjusted offense level of 43 and criminal history category of I. Craig filed a

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 10-3431 Page 2

notice of appeal, but his appointed counsel considers the appeal frivolous and moves to

withdraw under Anders v. California, 386 U.S. 738 (1967). Craig has responded under Circuit

Rule 51(b). We confine our review to the issues raised in counsel’s facially adequate brief

and Craig’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

Because Craig has not said he wants to challenge the pleas, counsel rightly forgoes

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 examines whether Craig could argue that the district court plainly

erred in its guidelines calculations by including as relevant conduct his exploitive acts

towards six children, four of whom were not named in the indictment. But counsel rightly

concludes that counting these acts was not plain error because they all took place during the

same time frame and as part of the same scheme, see U.S.S.G. § 1B1.3(a)(1)(A), and because

the guidelines expressly contemplate that uncharged instances of child exploitation will be

counted, see id. § 2G2.1 cmt. n.5; see also United States v. Ahders, 622 F.3d 115, 120 (2d Cir.

2010).

Counsel also asks whether Craig could challenge the district court’s decision to

apply multiple-count enhancements under U.S.S.G. § 3D1.4, rather than grouping some or

all of the exploitive acts under § 3D1.2. But as counsel recognizes, both charged and

uncharged “counts” of child sexual exploitation must be treated as separate counts of

conviction, and may not be grouped. See U.S.S.G. §§ 2G2.1(d)(1), 2G2.1 cmt. n.5, 3D1.2(d),

3D1.4; United States v. Von Loh, 417 F.3d 710, 713 (7th Cir. 2005); United States v. Schmeilski,

408 F.3d 917, 919-20 (7th Cir. 2005).

Counsel then considers whether Craig could argue that the district court engaged in

impermissible double-counting by applying a 5-level enhancement under U.S.S.G

§ 4B1.5(b)(1)—for exploiting some of the victims more than once—on top of the 5-level

multiple count adjustment under U.S.S.G. §§ 2G2.1(d)(1) and 3D1.4. But § 4B1.5(b)(1)

requires the adjusted offense level for repeat sex offenders to be “5 plus the offense level

determined in Chapters Two and Three” (emphasis added); the word “plus” reflects the

Commission’s intent that repeat offenders receive a 5-level enhancement “in addition to”

any calculations in Chapters Two and Three. Von Loh, 417 F.3d at 715.

Finally, counsel evaluates whether Craig could challenge the overall reasonableness

of his sentence. But the district court considered Craig’s arguments in favor of a lighter

sentence (including his contention that the child-exploitation guidelines are generally too

strict), as it was required to do. See United States v. Pape, 601 F.3d 743, 749 (7th Cir. 2010);

United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). The court then explained its
No. 10-3431 Page 3

selection of a guideline sentence by stressing the nature and circumstances of the

offense—Craig’s repeated exploitation of children, abuse of adults’ trust, trading of child

pornography, impersonation of one of the victims on a social networking website, payments

of hush money, and failure to stop exploiting children after one mother confronted him—as

well as the need to deter him and others from committing similar crimes in the future. See 18

U.S.C.§ 3553(a); United States v. Panaigua-Verdugo, 537 F.3d 722, 728 (7th Cir. 2008). The

sentence falls within the properly calculated guidelines range, and counsel offers nothing to

rebut our usual presumption that a within-guidelines sentence is reasonable. See Rita v.

United States, 551 U.S. 338, 347 (2007); United States v. Mantanes, 632 F.3d 372, 377 (7th Cir.

2011).

Craig counters in his 51(b) response that a lighter sentence would allow him and his

family to heal, and that the district judge has a reputation for imposing heavy sentences. Yet

these undeveloped assertions cast no doubt on the reasonableness of the sentence or the

sufficiency of the judge’s explanation.

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Craig’s

appeal.