# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 23, 2010

Decided October 20, 2010

Before

ILANA DIAMOND ROVNER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 09

‐ 3435

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

ALFRED T. SHIPPY,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Western District of Wisconsin.

No. 09

‐ CR

‐ 49

‐ C

‐ 01

Barbara B. Crabb,

Judge

.

O R D E R

During an interview with a school counselor, a ten

‐ year

‐ old girl reported that Alfred

Shippy, her mother’s boyfriend, had taken pictures of her while she was using the

bathroom. The school called the police. Law enforcement then searched Shippy’s home

and discovered a video camera, a digital camera, and two storage disks that contained

sexually explicit images of the young girl. Shippy, who had a prior conviction for

possession of child pornography and was a registered sex offender, pleaded guilty to

producing child pornography. See 18 U.S.C. § 2251(a). The district court sentenced him to

40 years’ imprisonment and a life term of supervised release. Shippy filed a notice of

appeal but his appointed lawyer has concluded the case is frivolous and has moved to

withdraw. See Anders v. California

, 386 U.S. 738, 744 (1967). Shippy responded to counsel’s

motion, see C IR

. R. 51(b), by asking to substitute counsel who he argues, would challenge the

length of his sentence. We review only the potential issues identified in counsel’s facially NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

F ED

. R. A PP

. P. 32.1No. 09

‐ 3435 Page 2

adequate brief and Shippy’s Rule 51(b) response. See United States v. Schuh

, 289 F.3d 968,

973

‐ 74 (7th Cir. 2002).

Shippy now wants his guilty plea set aside, so his appellate counsel properly

considers whether he could challenge the adequacy of the plea colloquy. See F ED

. R. C RIM

.

P. 11; United States v. Knox

, 287 F.3d 667, 671

‐ 72 (7th Cir. 2002). Because Shippy did not

move to withdraw his guilty plea in the district court, we would review for plain error only.

See F ED

. R. C RIM

. P. 52(b); Puckett v. United States

, 129 S. Ct. 1423, 1429 (2009); United States v.

Anderson

, 604 F.3d 997, 1001 (7th Cir. 2010). Counsel directs us to two omissions in the

district court’s plea colloquy, including the court’s failure to advise Shippy (1) that false

statements made under oath could be used against him in a prosecution for perjury and

(2) that the court had authority to order restitution. See F ED

. R. C RIM

. P. 11(b)(1)(A),

(b)(1)(K). Both of these errors were harmless, however. There is no current or prospective

prosecution against Shippy for perjury, see United States v. Blalock

, 321 F.3d 686, 689 (7th Cir.

2003); United States v. Graves

, 98 F.3d 258, 259 (7th Cir. 1996), and the court did not order

restitution, see United States v. Fox

, 941 F.2d 480, 483

‐ 84 (7th Cir. 1991). Counsel also asserts

that the district court failed to advise Shippy that he had a right to confront witnesses,

see F ED

. R. C RIM

. P. 11(b)(1)(E), but acknowledges that the court did advise Shippy of his

right to cross

‐ examine them. Moreover, Shippy’s plea agreement specifically stated that he

was waiving his right to confront witnesses. See United States v. Driver

, 242 F.3d 767, 771

(7th Cir. 2001).

Counsel and Shippy next consider whether he could challenge the length of his

sentence. At sentencing, however, Shippy’s counsel stated that there were no objections to

the guideline calculation, and this statement, counsel maintains, waived any error. But

whether Shippy waived or merely forfeited any challenge, any attack would be frivolous

because the district court calculated the guidelines range properly. To Shippy’s base offense

level of 32, see U.S.S.G. § 2G2.1(a), the district court added 4 levels because Shippy’s victim

was 10 years old, see id. § 2G2.1(b)(1)(A); 2 levels because, in the video, Shippy engaged in

sexual contact with the child, see id. § 2G2.1(b)(2)(A); another 2 levels because as the

boyfriend of the victim’s mother, Shippy had supervisory control over the victim, see id.

§ 2G2.1(b)(5); and 5 more because his criminal history reflected a pattern of activity

involving prohibited sexual conduct, see id. § 4B1.5(b)(1). The court also subtracted three

levels for accepting responsibility. See id. § 3E1.1(a)

‐ (b). A total offense level of 42 and

criminal history category III yields an applicable guidelines range of 360 months’

imprisonment to life. Shippy’s 40

‐ year sentence is within the guidelines range and thus

presumed to be substantively reasonable. See Rita v. United States

, 551 U.S. 338, 347 (2007);

United States v. Mykytiuk

, 415 F.3d 606, 608 (7th Cir. 2005). Further, the sentencing judge

adequately considered the 18 U.S.C. § 3553(a) factors, taking into account Shippy’s

characteristics such as his diminished mental capacity, the heinous nature of his crime, hisNo. 09

‐ 3435 Page 3

targeting of single mothers to take advantage of their children, and the need for adequate

deterrence in light of his history of failed treatment. See 18 § 3553(a)(1), (a)(2)(A)

‐ (B). We

agree with counsel that any challenge to the reasonableness of Shippy’s sentence would be

frivolous.

Accordingly, we GRANT counsel’s motion to withdraw, DENY Shippy’s motion for

new counsel, and DISMISS the appeal.