# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted October 25 , 202 2

Decided October 28, 2022

Before

DIANE S. SYKES , C hief Judge

DIANE P. WOOD , Circuit Judge

MICHAEL B. BRENNAN , Circuit Judge

No. 21-3125

UNITED STATES OF AMERICA , Plaintiff -Appell ee ,

v

.

RICARDO GOMEZ , Defendant

- App ellant

. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division

.

No. 1:18- CR -00004(1)

Andrea R. Wood , Judge

.

O R D E R

Ricardo Gomez pleaded guilty to sexual exploitation of a minor for the production and transportation of child pornography , 18 U.S.C. §§ 2251(a), 2252A (a)(1) , and was sentenced to 420 month s in prison . Gomez appeals, but h is appointed counsel asserts that the appeal is frivolous and moves to withdraw. See Anders v. Ca lifornia , 386 U.S. 738, 744 (1967). Counsel’s brief explains the nature of the case and raises NONPRECEDENTIAL DISPOSITION To be cited only in accordance with F ED

. R. A PP

. P. 32.1No. 21-3125 Page 2

potential issues that an appeal like this would be expected to involve. Because counsel’s analysis appears thorough and Gomez has not responded to the motion, se e 7 TH C IR

. R. 51(b), we limit our review to the subjects that counsel discusses , s ee United States v. Bey , 748 F.3d 774, 776 (7th Cir. 2014).
Gomez sexually abused his girlfriend’s daughter ( Minor A) for years while cohabit ing with them

. Gomez , whom his girlfriend often entrusted with the care of her children, coerced Minor A over a three

- year period to pose in sexually explicit photographs

. One photograph depicted Minor A naked , straddling Gomez backwards

. Gomez eventually was arrested and indicted after communicating with an undercover federal task force officer on a social

- media application and requesting to swap sexually explicit photographs with him.

Counsel , having confirm ed that Gomez has concerns that would require withdrawal of his guilty plea , see United States v. Caviedes- Zuniga , 948 F.3d 854, 855 (7th Cir. 2020) (citing United States v. Konczak , 683 F.3d 348 (7th Cir. 2012) , and United States v. Knox , 287 F.3d 667 (7th Cir. 2002)) , first considers whether Gomez could challenge the voluntariness of the plea. She properly concludes that he could not. The transcript of the plea colloquy reflects that the judge complied with the requirements of Rule 11 of the Federal Rules of Criminal Procedure : Gomez confirmed , for instance, that he understood the rights that he was waiving, the consequences of pleading guilty, the maximum possible sentence, and the role of the S entencing G uidelines . F ED

. R. C RIM

. P. 11 (b)

. The judge also ensured that a n adequate factual basis existed to support the plea

. See id. R. 11(b)(3) ; United States v. Neal , 907 F.3d 511, 515 (7th Cir. 2018).

Next, counsel considers whether Gomez could raise a nonfrivolous challenge to his sentence but properly concludes that he could not. The judge correctly calculated a sentencing range of life (based on a total offense level of 51 that was reduced to 43 (the top level) and a criminal

- history category I) , but that range was capped by the statutory maximum of 60 0 months. S ee 18 U.S.C. §§ 2251(e), 2252A(b) (1)

. Most notably, t he offense level reflects a base of 32 for production of child pornography, see U.S.S.G. § 2G2.1, and a base of 22 for transportation of child photography , s ee id. § 2G2.2.

C ounsel relatedly asks whether Gomez might challenge the judge ’s decision to overrule his objection to a two

- level enhancement for physical sexual contact with Minor A. Se e id. § 2G2.1 (b)(2)(A) ; 18 U.S.C. § 2246(3). We would review the judge’s ruling for clear err or , United States v. Schuster , 706 F.3d 800, 803–04 (7th Cir. 2013), and counsel properly concludes that any challenge to that ruling would be frivolous. T he judge’s finding was supported by sufficient evidence in the record: Gomez ’s admission in his plea agreement that he posed Minor A naked and straddling his crotch, aNo. 21-3125 Page 3

p hotograph of Minor A that depicted as much, and Gomez’s statements to the undercover agent that he touch ed the victim all o ver her body

.
Counsel also considers arguing that Gomez’s sentence was substantively

un reasonable and rightly concludes that doing so would be frivolous. Gomez ’s below -G uidelines sentence is presumptively reasonable , see United States v. Wehrle , 985 F.3d 549, 557 (7th Cir. 2021), and, l ike counsel, we see no reason to upset that presumption . T he judge appropriately applied the sentencing factors under 18 U.S.C. § 3553(a), finding that the seriousness of Gomez’s conduct (using his position of trust to repeatedly “terrorize” a minor over a period of years) and the need to protect the public outweighed his lack of any criminal history and his personal characteristics ( being a relatively young father who wishes to maintain a relationship with his child ren).
Finally, counsel considers whether Gomez could raise a claim of ineffective assistance of counsel based on his trial lawyer’s failure to object to certain information in the presentence investigation report and to scrutinize the discovery in this case . But as counsel explains, ineffective

- assistance claims are best saved for collateral review , where a n evidentiary foundation can be developed

. Massaro v. Unit ed States , 538 U.S. 500, 504 (2003); United States v. Cates , 950 F.3d 453, 456–57 (7th Cir. 2020).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.