                        NONPRECEDENTIAL DISPOSITION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

                               Argued December 17, 2013
                               Decided December 23, 2013

                                        Before

                            JOEL M. FLAUM, Circuit Judge

                            DIANE S. SYKES, Circuit Judge

                            JOHN DANIEL TINDER, Circuit Judge

No. 12-2165

UNITED STATES OF AMERICA,                   Appeal from the United States District
     Plaintiff-Appellee,                    Court for the Western District of Wisconsin.

      v.                                    No. 11-cr-120-wmc-01

JEFFREY J. MATHESON,                        William M. Conley,
     Defendant-Appellant.                   Chief Judge.

                                      ORDER

       Jefferey Matheson, who was sentenced to 13 years’ imprisonment for distributing
child pornography, challenges the validity of his guilty plea, arguing that the district
court violated Federal Rule of Criminal Procedure 11(b)(1) at his plea colloquy by
overstating the maximum and minimum penalties he faced. However, Mr. Matheson
has not shown a reasonable probability that, but for the error, he would have taken his
chances at trial. The correct potential penalties were set forth in his plea agreement,
noted at his change-of-plea hearing, included in the presentence report, and repeated at
his sentencing hearing. And not only was he represented at all stages, but the
government’s case against him was strong. Therefore, we affirm the judgment.
No. 12-2165                                                                             Page 2


        In December 2010 an undercover agent downloaded nearly 400 pornographic
images of children through a peer-to-peer network that originated from Mr. Matheson’s
computer, which agents seized three months later, discovering additional images. Seven
months after the agents seized his computer, Mr. Matheson was indicted on two counts
of distributing child pornography using a means of interstate commerce, see 18 U.S.C.
§ 2252(a)(2), and one count of possession of child pornography distributed through a
means of interstate commerce, see id. at § 2252(a)(4)(B).

       Four months later Mr. Matheson agreed to plead guilty to one count of
distributing child pornography and, in exchange, the government agreed to drop the
remaining charges and recommend a three-level reduction under U.S.S.G. § 3E1.1 for
acceptance of responsibility. Mr. Matheson signed a written plea agreement,
acknowledging that the judge could “impose any sentence up to and including the
maximum penalties.” As set forth in the first paragraph, Mr. Matheson would be
subject to a 5-year minimum and 20-year maximum sentence unless he had a prior
conviction for a sex crime (not the case here):

      This count charges a violation of 18 U.S.C. § 2552(a)(2) which carries a
      mandatory minimum penalty of five years in prison and maximum
      penalties of 20 years in prison . . . . If the defendant has a prior conviction
      as described in 18 U.S.C. § 2252(b)(1), the penalties related to prison time
      increase to a mandatory minimum penalty of 15 years in prison and a
      maximum penalty of 40 years in prison.

       Ten days after Mr. Matheson signed the plea agreement, the district court held a
change-of-plea hearing. At the beginning of the hearing, the prosecutor stated that
Mr. Matheson faced a prison range of 5 to 20 years by pleading guilty, but then, without
explaining that his potential penalties could differ based on his criminal history, the
prosecutor expressed that a higher penalty range would apply. Likely based on that
representation, the judge then overstated the maximum and minimum penalties when
he advised Mr. Matheson that he “could be subject to the penalties up to and including
the maximum and a mandatory minimum of 15 years in prison, a maximum of 40 years
in prison” taking into consideration the guidelines range. Mr. Matheson then entered a
guilty plea, which the court accepted.

     Mr. Matheson received a copy of his presentence report that described the 5-year
minimum and 20-year maximum penalties he faced; he did not object to the report’s
No. 12-2165                                                                         Page 3

contents. And at his sentencing hearing, the court reiterated that the statutory minimum
prison sentence was 5 years.

       The district court sentenced Mr. Matheson to 156 months’ imprisonment, toward
the low end of the 151 to 188-month range calculated by the probation officer. The court
considered Mr. Matheson’s emotional problems (mild depression) and his recent
attempts to seek help for his child-pornography addiction but determined that the
seriousness and nature of the offense counseled in favor of a weighty sentence. The
court considered Mr. Matheson’s crime “at the more extreme end of distribution of
child pornography,” noting that Mr. Matheson had collected and distributed
pornography for a long period, preferring sadistic images of prepubescent children, had
sexual contact with minors, and fantasized about raping very young girls.

       Mr. Matheson appealed, but his appointed appellate counsel concluded that the
appeal was frivolous and moved to withdraw under Anders v. California, 386 U.S. 738,
744 (1967). But we determined that Mr. Matheson had identified a non-frivolous issue:
whether the court’s error in misstating the applicable statutory minimum and
maximum sentences affected his substantial rights. We then appointed new counsel to
argue Mr. Matheson’s appeal on the merits. United States v. Matheson, No. 12-2165 (7th
Cir. Dec. 21, 2012) (unpublished order).

                                         Analysis

        On appeal Mr. Matheson argues only that he would not have pleaded guilty had
the district court not violated Federal Rule of Criminal Procedure 11(b)(1)(H)-(I) during
the plea colloquy by misstating the applicable maximum and minimum penalties.
Mr. Matheson insists that he would have taken his chances at trial had he known that he
faced a 5 to 20-year range because his actual sentence—13 years—looked favorable only
in light of the 15 to 40-year range outlined by the court at the plea colloquy.

        Mr. Matheson never moved to withdraw his guilty plea; therefore, we review his
claim for plain error and will vacate his plea only if the error affected his substantial
rights, that is if he can “show a reasonable probability that, but for the error, he would
not have entered the plea” given the totality of the circumstances. See United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004); see also United States v. Vonn, 535 U.S. 55, 59,
62–63 (2002); United States v. Hernandez, 731 F.3d 666, 670 (7th Cir. 2013).
No. 12-2165                                                                           Page 4

       Contrary to the government’s position, the district court violated Rule 11 when it
misinformed Mr. Matheson of the applicable range of penalties. See FED. R. CRIM. P.
11(1)(H)-(I) (requiring a court to “inform the defendant of . . . any maximum possible
penalty . . . [and] any mandatory minimum penalty” before accepting his guilty plea);
18 U.S.C. § 2252(b)(1); United States v. Hogg, 723 F.3d 730, 740 (6th Cir. 2013) (finding
error when district court overestimated the defendant’s potential penalty range should
the Fair Sentencing Act apply).

       But Mr. Matheson has not shown that he would have gone to trial if it weren’t for
that Rule 11 error. There is no reasonable probability that Mr. Matheson would have
gone to trial but-for the Rule 11 violation because he was accurately informed of the
penalty range before sentencing and never objected to it or moved to withdraw his plea.
See United States v. Rodriguez, 725 F.3d 271, 276 (2d Cir. 2013); United States v. Todd, 521
F.3d 891, 896–97 (8th Cir. 2008); United States v. Vaval, 404 F.3d 144, 152 (2d Cir. 2005);
United States v. Sanchez-Cruz, 392 F.3d 1196, 1200 (10th Cir. 2004), vacated on other
grounds, 544 U.S. 970 (2005). First, the correct information was included in his plea
agreement, which Mr. Matheson signed to acknowledge that he understood its contents.
See Dominguez Benitez, 542 U.S. at 85; United States v. Driver, 242 F.3d 767, 771 (7th Cir.
2001). The plea agreement also notes that the higher penalty range invoked by the court
at the plea colloquy would apply only if Mr. Matheson had a previous sex offense, and
Mr. Matheson would have known that he had no such previous conviction. In addition,
the presentence report—to which Mr. Matheson had no objections—accurately reflected
the potential penalties. See Rodriguez, 725 F.3d at 276; United States v. Foy, 617 F.3d 1029,
1034 (8th Cir. 2010); Todd, 521 F.3d at 896–97; Vaval, 404 F.3d at 152. Finally, the court,
before imposing sentence, reminded Mr. Matheson of the proper statutory minimum at
the sentencing hearing. See Rodriguez, 725 F.3d at 277; Foy, 617 F.3d at 1035.

         The strength of the government’s case also belies Mr. Matheson’s assertion that
he would have gone to trial if it weren’t for the court’s Rule 11 error. After all, “a
conviction after a guilty plea cannot be described as a miscarriage of justice if the
defendant had no defense and was bound to be convicted anyway.” Driver, 242 F.3d at
771. Mr. Matheson would have had trouble countering the government’s evidence at
trial, including the images downloaded by an undercover officer originating from
Mr. Matheson’s computer, the additional images found on his computer, and Mr.
Matheson’s admission to agents that he used peer-to-peer networks to collect and
distribute child pornography. See Dominguez Benitez, 542 U.S. at 85 (“When the record
made for a guilty plea and sentencing reveals evidence, as this one does, showing both
a controlled sale of drugs to an informant and a confession, one can fairly ask a
No. 12-2165                                                                       Page 5

defendant seeking to withdraw his plea what he might ever have thought he could gain
by going to trial.”); Rodriguez, 725 F.3d at 277 (strength of evidence against defendant
including recordings, controlled sale to confidential informant, and defendant’s post-
arrest admissions suggest that defendant would have entered plea notwithstanding any
error). And in the face of such a strong government case, there is no reasonable
probability that Mr. Matheson would have chosen trial and lost the benefits from his
plea bargain, including the dismissal of the remaining charges and the three-level
reduction for acceptance of responsibility. See United States v. Dixon, 308 F.3d 229, 236
(3d Cir. 2002).

       Because Mr. Matheson has not demonstrated that the district court’s
misstatement of the applicable statutory minimum and maximum penalties affected his
substantial rights by inducing him to plead guilty when he otherwise would not have,
we AFFIRM the judgment of the district court.
