                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1



            United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Submitted January 17, 2007
                             Decided January 19, 2007

                                       Before

                     Hon. THOMAS E. FAIRCHILD, Circuit Judge

                     Hon. WILLIAM J. BAUER, Circuit Judge

                     Hon. KENNETH F. RIPPLE, Circuit Judge

No. 06-3063

UNITED STATES OF AMERICA,                       Appeal from the United States
    Plaintiff-Appellee,                         District Court for the Central
                                                District of Illinois
      v.
                                                No. 01-10011-001
DELBERT R. HOLM,
    Defendant-Appellant.                        Michael M. Mihm,
                                                Judge.

                                     ORDER

       Delbert Holm was convicted in 2002 of possessing child pornography, see 18
U.S.C. § 2252(a)(4)(B), and was initially sentenced to 59 months’ imprisonment and
3 years’ supervised release. When Holm appealed, we affirmed his conviction but
remanded for resentencing because the district court had miscalculated the
guidelines imprisonment range and imposed a condition of supervised release (a
total ban on Internet use) that was unduly restrictive. See United States v. Holm,
326 F.3d 872 (7th Cir. 2003). On remand the court recalculated the imprisonment
range and resentenced Holm to 46 months’ imprisonment and 3 years’ supervised
release, this time limiting the restriction on Internet use to a ban against receiving
or sending “sexually arousing material, including child pornography.”
No. 06-3063                                                                    Page 2

       Holm served his time in prison and began his term of supervised release in
June 2005. Less than a year later his probation officer found child pornography in
his home and petitioned for revocation of his supervised release. See U.S.S.G.
§ 7B1.2(a). After a hearing, the district court revoked Holm’s supervised release,
finding that he violated both the mandatory condition that he not commit further
crimes, see 18 U.S.C. § 3583(d), and a special condition that prohibited him from
possessing “any material, legal or illegal, that contains nudity or that depicts or
alludes to sexual activity or depicts sexually arousing material.” The court
calculated, based on a Grade B violation and a Category I criminal history, a
recommended imprisonment range of 4 to 10 months under the relevant policy
statements. See U.S.S.G. § 7B1.4(a). But, convinced that Holm would commit the
crime again, the court imposed a 24-month term of reimprisonment to be followed
by 12 months of further supervised release.

       Holm filed a notice of appeal, but his appointed counsel now moves to
withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v.
California, 386 U.S. 738 (1967). We invited Holm to respond to counsel’s brief, see
Cir. R. 51(b), but he has not done so. Counsel’s supporting brief is facially
adequate, so we limit our review to the potential issues identified by counsel. See
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

        Counsel first considers whether Holm could argue that the government failed
to adduce sufficient evidence that he violated a condition of his supervised release.
Before revoking a term of supervised release, the district court must find by a
preponderance of the evidence that the defendant violated a condition of his release.
See 18 U.SC. § 3583(e)(3); United States v. Trotter, 270 F.3d 1150, 1153 (7th Cir.
2001). At Holm’s revocation hearing, two probation officers testified that while
searching his home they found a stack of photographs of children under 12 engaged
in sexual acts and poses, as well as additional files containing child pornography on
Holm’s laptop computer. A detective from the FBI Cyber Crimes Task Force
testified that the laptop contained, all told, 398 images of nude children or children
engaged in lascivious acts. The detective added that all of those images were
downloaded onto the laptop after Holm was released from prison, and the district
court reasoned that Holm knew about the images because analysis of the hard drive
had shown that the files were accessed after they were created. Holm admitted
that he possessed the photographs—all of which were part of the evidence that led
to his 2002 conviction—but he maintained that the district court had authorized
him to retain the photographs for use on appeal. The court rejected this contention
as preposterous and noted, in any event, that Holm’s appeal was long over.
Moreover, Holm’s explanation for having the photographs ignores the files that
were downloaded to his laptop after he was released from prison. Thus, we agree
with counsel that it would be frivolous for Holm to argue that the hearing evidence
did not establish by a preponderance that he again possessed child pornography
No. 06-3063                                                                   Page 3

contrary to both conditions of his supervised release. See United States v. Myers,
355 F.3d 1040, 1042 (7th Cir. 2004); 18 U.S.C. § 2252(a)(4)(B).

       Counsel next considers whether the term of reimprisonment could be
challenged on reasonableness grounds. We would uphold the additional prison term
unless it is “plainly unreasonable.” United States v. Carter, 408 F.3d 852, 854 (7th
Cir. 2005). The district court was required to consider the applicable policy
statements and the sentencing factors in 18 U.S.C. § 3553(a), see id., but the
imprisonment ranges set out in the policy statements are, and always have been,
advisory. See U.S.S.G. Ch. 7, Pt.A(1); Carter, 408 F.3d at 854; United States v.
Wallace, 458 F.3d 606, 610-11 (7th Cir. 2006). The district court chose to impose a
term above the range because Holm had again committed the very same crime, had
shown “no remorse,” and apparently saw nothing wrong with child pornography.
The court was not persuaded that Holm should receive a shorter prison term
because he was 61 and in poor health, and instead the court felt compelled to
protect the public from Holm, whose swift recidivism confirmed for the court that,
without imprisonment, he would “find a way to go right back to doing this again.”
The court also took into account the number of children and the repetitive
victimization of each from continuous dissemination and viewing of the images. As
in Carter, the district court adequately explained its reasons for imposing a longer
term of reimprisonment than that recommended by the guidelines. See Carter, 408
F.3d at 854-55 (concluding that defendant’s “pattern of serial conduct and of non-
compliance with the requirements of supervised release” merited reimprisonment at
twice the recommended range). Accordingly we agree with counsel that it would be
frivolous to argue that Holm’s sentence is plainly unreasonable.

      We GRANT counsel’s motion to withdraw, and DISMISS the appeal.
