# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 2, 2020

Decided November 3, 2020

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 20

‐ 1357

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

GARY E. SHIELDS,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 3:10

‐ CR

‐ 30179

‐ SMY

‐ 1

Staci M. Yandle,

J udge

.

O R D E R

Gary Shields pleaded guilty to possessing child pornography, 18 U.S.C.

§ 2252(a)(4)(B), (b)(2), and was sentenced to 120 months’ imprisonment followed by a

lifetime of supervised release. During his first year of release, Shields violated several

conditions of his supervision, including accessing child pornography from the

internet. After the government moved to revoke his release, Shields admitted to the

violations. The district court revoked his supervised release and sentenced him to 18

months’ reimprisonment followed by a lifetime of supervised release. Shields filed a

timely notice of appeal and seeks to challenge his sentence. His appointed counsel,

however, asserts that all potential appellate arguments are frivolous, moves to NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 20

‐ 1357 Page 2

withdraw, and asks us to dismiss the appeal. See Anders v. California

, 386 U.S. 738, 744

(1967). We agree with counsel and therefore grant the motion to withdraw and dismiss

the appeal.

Although the Constitution does not automatically entitle a defendant to counsel

in revocation proceedings, we nonetheless analyze counsel’s motion to withdraw under

the Anders safeguards to ensure careful consideration of potential issues.

See United States v. Brown

, 823 F.3d 392, 394 (7th Cir. 2016). Counsel’s brief explains the

nature of the case and addresses the issues that an appeal of this kind may be expected

to involve. Because his analysis appears thorough, and Shields did not respond,

see C IR

. R. 51(b), we limit our review to the subjects counsel has discussed.

See United States v. Bey

, 748 F.3d 774, 776 (7th Cir. 2014). Counsel assures us that, after

discussing the risks and benefits of contesting the validity of Shield’s admission to

violating his conditions of supervised release, Shields stated that he wishes to challenge

only his sentence. So counsel appropriately does not discuss any potential issues about

the revocation itself. See United States v. Konczak

, 683 F.3d 348, 349 (7th Cir. 2012).

Counsel first contemplates a challenge to the 18

‐ month prison term on the basis

that it exceeds the guidelines range of 5 to 11 months, see U.S.S.G. § 7B1.4(a), and he

rightly concludes the challenge would be pointless. We would vacate the sentence only

if it were plainly unreasonable. See United States v. Jones

, 774 F.3d 399, 403 (7th Cir.

2014). Shields’s prison term is not. It is below the statutory maximum of 24 months, and

to arrive at it, the court reasonably weighed the 18 U.S.C. § 3553(a) sentencing

factors. See 18 U.S.C. § 3583(e)(3). The court noted that Shields was a victim of child

sexual abuse, see id. at § 3553(a)(1), attended sex offender treatment, see

id

. at § 3553(a)(2)(D), and asserted that he wanted to get better. But the court

permissibly found that his violations—which were similar to his underlying offense,

see id

. at § 3553(a)(1)—were “extremely significant and extremely troubling”: He

admitted to masturbating in public and viewing child pornography online, and he was

discharged from the treatment program after bullying its staff and members. The

district court also reasonably cited the need to deter Shields’s conduct. See

id

. at § 3553(a)(2)(B). Shields had boasted to his probation officer that he could satisfy

his sex addiction undetected, and the treatment program’s therapist opined that Shields

was unwilling to change. The court thus soundly concluded that Shields posed a

substantial threat to the public, see id. at § 3553(a)(2)(C), warranting an upward

variance. See U.S.S.G. § 7B1.4, cmt. 3. Given the court’s explanation and its consistency

with the guidelines’ commentary, Shields could not reasonably argue that the 18

‐ month

prison term was plainly unreasonable.No. 20

‐ 1357 Page 3

Next, counsel considers whether Shields could mount a plausible substantive

challenge to his lifetime term of supervised release. Like his term of imprisonment, we

would reverse this portion of his sentence only if it were plainly unreasonable. See Jones

,

774 F.3d at 403. Counsel correctly concludes that the substantive argument would be

hopeless. For offenses involving minor victims, 18 U.S.C. § 3583(k) authorizes a term of

five years to life. And because the guideline range is one year to life, see U.S.S.G.

§ 5D1.2(b)(2), we would presume that the life sentence was substantively reasonable.

See United States v. Lickers

, 928 F.3d 609, 621 (7th Cir. 2019)

. Counsel cannot identify, nor

can we discern, any reason to disturb that presumption.

Counsel also considers a procedural point: whether the district court reversibly

erred by not stating on the record the guidelines range for the term of supervised

release. He observes accurately that a sentencing court must correctly calculate the

guidelines range, see Hawkins v. United States

, 706 F.3d 820, 822 (7th Cir. 2013), and if the

court fails to do so, the omission is subject to harmless

‐ error analysis. See United States v.

Shelton

, 905 F.3d 1026, 1031 (7th Cir. 2018). Any omission here was necessarily harmless.

The probation officer correctly told the district court that the guidelines recommend a

life term of supervised release, U.S.S.G. § 5D1.2(b)(2), and the parties likewise

acknowledged to the court that Shields could be sentenced for life. Given the

uncontested guidelines’ recommendation of lifetime supervised release for sex offense

felonies, Shields could not plausibly argue that the absence of a statement from the

court reiterating the guideline range is reversible error.

Lastly, counsel rightly concludes that it would be frivolous to challenge the

district court’s amendment to a condition of Shields’s supervision at the sentencing

hearing. In light of recent case law, see United States v. Lee

, 950 F.3d 439, 447 (7th Cir.

2020), the court revised one condition to provide that only the court (not a probation

officer) could approve Shields’s internet

‐ connected devices. Before the hearing, Shields

signed a waiver of any objections to the conditions of release. After the judge amended

the one condition at the hearing, Shields orally confirmed that he had no objections. As

counsel’s brief recognizes, these actions waived any appellate challenge to the

conditions. See United States v. Dodds

, 947 F.3d 473, 476 (7th Cir. 2020).

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.