United States of America v. John Gherna

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2018
Decided April 4, 2018
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 17-2461
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN GHERNA,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 16-20050-001
Colin S. Bruce,
Judge.
O R D E R
After a police officer found that John Gherna’s computer was being used to share
and download child pornography, Gherna was arrested. Without the benefit of a plea
agreement, he pleaded guilty to one count of receipt of child pornography, 18 U.S.C.
§ 2252A(a)(2)(A), and one count of possession of child pornography, 18 U.S.C.
§ 2252A(a)(5)(B). Gherna was sentenced to 210 months’ imprisonment on each count, to
be served concurrently, and 15 years’ supervised release. He received several
sentencing adjustments, including one for obstruction of justice, U.S.S.G. § 3C1.1.
Gherna seeks to appeal but his attorney has asked to withdraw because she believes an
appeal would be frivolous. See Anders v. California, 386 U.S. 738 (1967).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 2 --

No. 17-2461 Page 2
Because Gherna has not responded to counsel’s motion, see C IR . R. 51(b), and
counsel’s brief explains the nature of the case and thoroughly addresses issues that an
appeal of this kind might be expected to involve, we limit our review to the subjects
that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014);
United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel reports that she asked Gherna if he wanted to withdraw his guilty plea.
Since Gherna said that he does not, counsel rightly refrains from exploring arguments
about whether the plea was knowing and voluntary. See United States v. Konczak, 683
F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).
Next counsel explores whether Gherna could contest the imposition of a
two-level adjustment for obstruction of justice under U.S.S.G. § 3C1.1, but she properly
concludes that doing so would be frivolous. The sentencing judge applied the
adjustment because Gherna called his family from prison and asked his sons to “step
up” and say that they downloaded images on Gherna’s computer. Although defense
counsel argued that Gherna’s communications amounted to no more than his
constitutionally protected right to develop a defense, the judge concluded that Gherna
was coaching his family to lie. The judge based that conclusion on the transcripts of the
phone calls excerpted in the PSR. Gherna prompted his family about what to say,
advised that they “commit it to memory,” and recited facts that they should have
known without any encouragement or reminder (such as whether they were living at
the house and using Gherna’s computer). See, e.g., United States v. Ewing, 129 F.3d 430,
434 (7th Cir. 1997) (discussing cases where obstruction adjustments were affirmed
because defendants’ communications were “thinly veiled means of rehearsing their
cover story”). Therefore it would be frivolous to argue that the judge clearly erred.
Finally, counsel considers whether Gherna could challenge the reasonableness of
his 210-month sentence. But the sentence imposed is within the guidelines range of
210–262 months (based on a total offense level of 32 and a criminal history category of
VI), and therefore is presumptively reasonable, United States v. Adams, 879 F.3d 826, 829
(7th Cir. 2018). Counsel does not identify any reason to rebut that presumption here,
and we perceive none.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

-- 2 of 2 --