United States of America v. Ashley D. Harper

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 15, 2023
Decided June 22, 2023
Before
DIANE S. SYKES, Chief Judge
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-2737
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ASHLEY D. HARPER,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:22CR007-001
Jon E. DeGuilio,
Chief Judge.
O R D E R
Ashley Harper pleaded guilty under 18 U.S.C. § 2251(a) to sexually exploiting a
minor, for which he was sentenced to 210 months in prison and five years of supervised
release. He filed a notice of appeal, but his appointed counsel asserts that the appeal is
frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). We grant
the motion and dismiss the appeal.
On July 20, 2021, Harper picked up Jane Doe, a five-year-old girl, from her
babysitter, who permitted Harper to take Doe to a park. When Harper brought Doe
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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home that evening, the girl told her mother that Harper had licked her vagina. After
Doe’s mother reported the incident, the Michigan City Police Department investigated.
Several months later, Google provided the National Center for Missing and
Exploited Children with images and videos that had been uploaded to Harper’s
account, which Google flagged as depictions of the sexual abuse of children. The center
alerted federal authorities, who, after receiving the materials, learned about the pre-
existing investigation in Michigan City. Agents obtained a warrant to search Harper’s
phone, where they found eight images and one video of Doe from July 20, 2021. In each
she was wearing the same clothing that she wore to the park with Harper. In some of
the materials, another person can be seen or heard; it is undisputed that this is Harper.
One image depicts Harper’s finger pulling down Doe’s underwear and partially
penetrating her vagina with his fingertip. In the video Doe’s genitalia are exposed, and
she tells Harper, “Wipe me off.”
Federal authorities arrested Harper on a criminal complaint. Shortly after his
arraignment, he was indicted on one count of producing child pornography, 18 U.S.C.
§ 2251(a), and two counts of possessing child pornography, id. § 2252(a)(4)(B). Without
a plea agreement, Harper pleaded guilty to the production count. At his change-of-plea
hearing conducted by the assigned magistrate judge, Harper admitted that he had used
his cell phone to take the images and video of Doe while she “was in [his] custody” and
under his care and control. Without objection, the district judge accepted the magistrate
judge’s recommendation to accept Harper’s guilty plea and dismissed the two
possession counts on the government’s motion.
The probation office then prepared a presentence investigation report (“PSR”),
which calculated a Guidelines range of 210 to 262 months in prison based on a total
offense level of 37 and a criminal-history category of I. To the base offense level of 32
under U.S.S.G. § 2G2.1(a), the PSR added four levels because the victim was under age
12, U.S.S.G. § 2G2.1(b)(1)(A); two levels because Harper had “performed oral sex on the
victim,” id. § 2G2.1(b)(2)(A); and another two levels because the victim had been in
Harper’s custody, care, or supervisory control, id. § 2G2.1(b)(5). Harper received a
three-level deduction for timely accepting responsibility for his offense. Id. § 3E1.1.
Harper objected to both two-level increases, denying the oral sex and arguing
that Doe had not been in his custody and care. But the judge determined that Doe’s
statement to her mother—and the video of Doe saying, “Wipe me off”—supported a
finding that Harper had performed a “sexual act.” See § 2G2.1(b)(2)(A). And regardless,

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the judge explained, an increase for “sexual contact” was warranted based on the
photograph of Harper’s fingertip penetrating Doe, “however slight[ly].” See id.;
18 U.S.C. § 2246(2). The judge also applied the custody-and-care increase because it was
undisputed that Harper had taken Doe with the babysitter’s permission and that no
other adults accompanied them. Moreover, when he pleaded guilty, Harper expressly
admitted that Doe had been in his custody, care, and control.
After hearing the parties’ arguments, the judge sentenced Harper to 210 months
in prison and the mandatory minimum five years of supervised release. The judge
explained that a sentence at the low end of the range was appropriate because although
Harper’s offense and its lasting effects were serious, Harper was older, had limited
education and mental-health issues, and had quickly accepted responsibility. The judge
also stated that even if the Guidelines range had been lower, he would have imposed
the same sentence to adequately reflect the seriousness of Harper’s conduct.
That brings us to this appeal. Counsel’s brief explains the nature of the case and
raises potential issues that we would expect an appeal like this to involve. Because the
analysis appears thorough and Harper has not come forth with additional issues to
raise in an appeal, see 7TH C IR . 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).
Counsel first tells us that he advised Harper about the risks and benefits of
withdrawing his plea, and Harper does not wish to do so. Therefore, counsel
permissibly omits discussion of whether the magistrate judge complied with the
requirements of Rule 11 of the Federal Rules of Criminal Procedure for ensuring a
knowing and voluntary guilty plea. See United States v. Konczak, 683 F.3d 348, 349
(7th Cir. 2012) (citing United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002)).
Next, counsel correctly concludes that Harper could not raise any nonfrivolous
challenge to the Guidelines calculations. The offense-level increases for engaging in a
sexual act or contact and for exploiting someone in his custody and control, see
§ 2G2.1(b)(2)(A), (b)(5), are based on factual findings that we would review for clear
error. See United States v. Johnson, 784 F.3d 1070, 1073 (7th Cir. 2015). We would review
the judge’s interpretation of the Guidelines de novo. Id.
Harper could argue that the sexual-act increase should not apply because the
only evidence he engaged in oral sex was Doe’s hearsay statement to her mother. But
because the rules of evidence do not apply at sentencing, Harper would need to

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demonstrate that the statement was unreliable. See United States v. Betts-Gaston, 860 F.3d
525, 539 (7th Cir. 2017). He did not meet that burden, particularly given the
corroborating video. Regardless, as the district judge found, the photo of Harper using
his finger to penetrate Doe shows “intentional touching … of the genitalia” and
supports the “sexual contact” increase. See § 2G2.1(b)(2)(A) & cmt. n.2 (incorporating
18 U.S.C. § 2246(3)). As for the custody-and-care adjustment, Harper admitted at his
plea hearing that Doe was in his custody, care, and control, and that he was the only
adult present with her for several hours. See § 2G2.1(b)(5); United States v. Carson,
539 F.3d 611, 612 (7th Cir. 2008). He did not attempt to withdraw those admissions,
which would require him to explain his contrary statement under oath. See United States
v. Chavers, 515 F.3d 722, 724 (7th Cir. 2008). Therefore, we agree with counsel that it
would be frivolous to argue that findings supporting these two adjustments were
clearly erroneous.
Counsel also rightly concludes that even if the judge had erred in the Guidelines
calculations, any error would be harmless. Giving “specific … attention to the contested
guideline issue[s],” the judge offered a “detailed explanation” why he would have
imposed the same sentence even without the disputed offense-level increases.
See United States v. Asbury, 27 F.4th 576, 581 (7th Cir. 2022). Specifically, the judge
explained that the gravity of Harper’s conduct toward a young child in his care justified
the 210-month sentence irrespective of the Guidelines range. See id. at 581–82.
Counsel continues that any other procedural challenge would be frivolous, and
we agree. The prison sentence and five-year term of supervised release are within the
relevant statutory boundaries. See 18 U.S.C. §§ 2251(e), 3583(k). Nothing suggests that
the judge relied on inaccurate information. See United States v. Issa, 21 F.4th 504, 508
(7th Cir. 2021). And after properly calculating the Guidelines range, the judge allowed
both parties to present arguments, considered those arguments along with the factors
under 18 U.S.C. § 3553(a), and explained his reasoning. See Gall v. United States, 552 U.S.
38, 53 (2007) (listing procedural errors).
Challenging the substantive reasonableness of the sentence would also be
frivolous, as counsel explains. Because Harper’s sentence is within a properly calculated
Guidelines range, we would presume that it is not unreasonably high. See United States
v. Melendez, 819 F.3d 1006, 1013 (7th Cir. 2016). And counsel finds no way to rebut that
presumption because the district judge adequately considered the § 3553(a) factors,
balancing the mitigating factors (Harper’s mental health, age, and minimal criminal

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history) against the seriousness of the offense, especially the amount of harm to the
victim. See id. at 1013–14.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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