Opinion
23-2853
10-23-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM KIEFFER, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Submitted October 22, 2024
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:21-CR-00207(1) Manish S. Shah, Judge.
MICHAEL B. BRENNAN, Circuit Judge, THOMAS L. KIRSCH II, Circuit Judge, CANDACE JACKSON-AKIWUMI, Circuit Judge
ORDER
William Kieffer pleaded guilty to transporting and possessing child pornography, 18 U.S.C. § 2252A(a)(1), (a)(5)(B), (b)(2), and was sentenced to 10 years' imprisonment. Kieffer appeals, but his appointed counsel asserts that the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel's brief explains the nature of the case and raises potential issues that an appeal like this would be expected to involve. Because counsel's analysis appears thorough, and Kieffer has not responded to the motion, see CIR. R. 51(b), we limit our review to the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Kieffer administered an online network for distributing and exchanging child pornography. After an undercover investigator infiltrated the ring, federal agents executed a search warrant at Kieffer's home and uncovered a cache of thousands of images and videos depicting child exploitation. Kieffer cooperated with law enforcement and, following an indictment on four counts, pleaded guilty to one count of unlawful transportation of child pornography, 18 U.S.C § 2252A(a)(1), and one count of unlawful possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), (b)(2).
In his written plea agreement, Kieffer stipulated that: (1) he transferred multiple images of child pornography to other users of his online network; (2) he owned several devices that contained thousands of images and videos of child pornography; (3) he occasionally disseminated these files in return for valuable consideration (other explicit material); and (4) he possessed images of prepubescent minors and minors under 12 years of age, portrayals of sadistic and masochistic conduct, other depictions of violence, and the sexual abuse or exploitation of an infant or toddler.
After holding a change-of-plea hearing and engaging in a colloquy with Kieffer, see FED. R. CRIM. P. 11(b), the district court accepted Kieffer's guilty plea and directed the Probation Office to prepare a presentence investigation report ("PSR"). The PSR grouped the two counts, U.S.S.G. § 3D1.2(d), and applied a base offense level of 22 under § 2G2.2(a)(2). The PSR added 18 levels for special offense characteristics: two levels for material involving prepubescent minors or minors under the age of 12, § 2G2.2(b)(2); five levels for distributing the images for non-pecuniary valuable consideration, § 2G2.2(b)(3)(B); four levels for material involving sadistic, masochistic, or violent conduct, or portraying the sexual abuse of an infant or toddler, § 2G2.2(b)(4); two levels for using a computer, § 2G2.2(b)(6); and five levels for conduct involving 600 or more images, § 2G2.2(b)(7)(D). Three offense levels were subtracted for timely acceptance of responsibility, § 3E1.1(a)-(b). This resulted in a total offense level of 37, which, when combined with a criminal history category of I, produced a sentencing range of 210 to 262 months' imprisonment.
By statute, the range of supervised release was five years to life, 18 U.S.C. § 3583(k), and so that became the guidelines range as well, U.S.S.G. § 5D1.2(b)-(c). The PSR identified, to date, 20 victims who claimed a total of $129,500 in mandatory restitution. See 18 U.S.C. § 2259(b).
Kieffer objected to the guidelines calculations in the PSR. He asserted he was entitled to a two-level reduction under then-pending Amendment 821's "Adjustment for Certain Zero-Point Offenders." U.S.S.G. § 4C1.1 (2023). Kieffer also objected to the restitution, arguing that there was no evidence that he proximately caused the harm to the victims. Finally, Kieffer objected to four of the recommended special conditions of supervised release.
At the sentencing hearing, the court began by reviewing the PSR. Regarding Kieffer's guidelines objection, the district court observed that Amendment 821 was not yet in effect and that, in any event, Kieffer would not satisfy § 4C1.1(a)(5)'s requirement that his crime not be a sex offense. After overruling the objection, the district court granted the government's motion to subtract a third offense level for acceptance of responsibility. Accordingly, the court adopted the guidelines range set forth in the PSR.
Regarding restitution, the district court rejected Kieffer's proximate-causation argument, concluding that victim impact statements showed that Kieffer harmed the victims by possessing and trading images and that this harm could be approximately measured for most victims under the "1/n" method. See Paroline v. United States, 57 U.S. 434, 458-460 (2014). The court reviewed each victim's claim and assessed an amount based on the total claimed damages, the amount of previous restitution payments, the quantity of images of the victim, and whether the images had been distributed. The court arrived at a total restitution of $67,400 to the 20 victims. Next, the court resolved Kieffer's objections to the conditions of supervised release, either sustaining them or deferring a ruling until his release.
Under this method, a defendant's restitution amount for each victim is that victim's total claimed expenses, divided by the number of offenders who have been ordered to pay restitution, including the defendant being sentenced. United States v. Sainz, 827 F.3d 602, 605 (7th Cir. 2016).
Finally, the court invited argument from both sides about the appropriate sentence, heard Kieffer's allocution, and then discussed the sentencing factors under 18 U.S.C. § 3553(a). The court considered the gravity of Kieffer's offense-emphasizing that he not only collected but distributed the harmful material-and balanced that against his stable personal life, his traumatic childhood, his health challenges, and the heightened dangers he faces in prison. The court ultimately concluded that a below-range sentence would serve the purposes of sentencing and imposed 120 months' imprisonment and 10 years' supervised release. The court also imposed $10,200 in special assessments: $200 under 18 U.S.C. § 3013(a)(2)(B) and $10,000 under § 3014(a)(3).
In his Anders brief, counsel first states that he advised Kieffer about the risks and benefits of challenging the guilty plea and determined that Kieffer does not seek to withdraw his plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Counsel therefore properly omits discussion of whether the plea was knowing and voluntary. See United States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024).
Next, counsel considers whether Kieffer could raise a nonfrivolous argument that there was a procedural error at sentencing, but counsel properly concludes that there is not. The base offense level was 22 under U.S.S.G. § 3D1.2(d) and § 2G2.2(a)(2), Kieffer stipulated to the facts supporting the 18 levels of special offense characteristics, and he received the full three-level reduction for accepting responsibility. Kieffer had zero criminal history points, corresponding to the criminal history category of I, and so the court adopted the correct range of 210-262 months' imprisonment. Counsel also considers Kieffer's request that the district court apply a two-level reduction for being a zero-point offender under Guidelines Amendment 821. A district court must normally apply the Guidelines that are in effect on the sentencing date, § 1B1.11(a), and here that did not include the zero-point offender adjustment, see § 4C1.1 (adjustment effective November 1, 2023). Moreover, the provision does not apply to sex offenses. U.S.S.G. § 4C1.1(a)(5).
Counsel next considers but rightly rejects a challenge to the substantive reasonableness of the 120-month prison term. On appeal, we presume that a sentence below a properly calculated guidelines range is not unreasonably long. United States v. Campbell, 37 F.4th 1345, 1352 (7th Cir. 2022). As counsel explains, nothing in the record undermines that presumption. The court applied the 18 U.S.C. § 3553(a) factors and weighed the seriousness of the offense against Kieffer's mitigating personal characteristics. We would not conclude that the district court abused its discretion with respect to how it weighed these factors. See Campbell, 37 F.4th at 1349.
Counsel further considers the restitution. The district court found that the victim impact statements show Kieffer caused harm to the victims by viewing and trading the images, and that the victims incurred measurable losses because they require continuing counseling. Those findings are a proper basis for a court to order restitution under 18 U.S.C. § 2259(b). See Paroline, 572 U.S. at 458-60. Kieffer expressly agreed at sentencing he did not dispute the "claimed total losses" and therefore waived any objection to the amounts. See United States v. Harris, 102 F.4th 847, 850-52 (7th Cir. 2024). The court's method of calculation was within its discretion. United States v. Sainz, 827 F.3d 602, 605-07 (7th Cir. 2016). The court treated each victim's claim individually, calculated an estimated amount using the approved "1/n" method, and erred toward awarding a conservative amount compared to what was claimed. See Paroline, 572 U.S. at 458-60; Sainz, 827 F.3d at 605-07. It would therefore be frivolous to challenge the mandatory restitution amounts.
Finally, counsel considers whether the district court properly ordered the special assessment under the Justice for Victims of Trafficking Act, 18 U.S.C. § 3014(a)(3). Through his pension income, Kieffer can pay the assessment over a 20-year period, so he is not indigent under § 3014 and is subject to its mandatory payment. See United States v. Otradovec, 72 F.4th 794, 797 (7th Cir. 2023). It would therefore be frivolous for Kieffer to challenge this aspect of the special assessment.
Therefore, we GRANT counsel's motion to withdraw and DISMISS the appeal.