David Resnick v. United States ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1221
DAVID A. RESNICK,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:18-cv-00156-JTM — James T. Moody, Judge.
____________________
ARGUED MAY 21, 2021 — DECIDED AUGUST 3, 2021
____________________
Before SYKES, Chief Judge, and RIPPLE and HAMILTON,
Circuit Judges.
RIPPLE, Circuit Judge. In adjudicating David Resnick’s di-
rect appeal from his conviction and life sentence for sexually
abusing two young boys, we affirmed the judgment of the
district court. United States v. Resnick, 823 F.3d 888 (7th Cir.
2016). Mr. Resnick then filed a motion under 28 U.S.C. § 2255
to vacate his conviction and sentence, alleging that his de-
fense counsel provided ineffective assistance. The district
2 No. 20-1221
court denied the motion, and Mr. Resnick filed a timely ap-
peal to this court. We now conclude that the district court
correctly determined that Mr. Resnick was not deprived of
his Sixth Amendment right to effective assistance of counsel.
Accordingly, we affirm the district court’s judgment.
I
BACKGROUND
We summarized Mr. Resnick’s offenses in our opinion af-
firming his conviction and sentence on direct appeal, United
States v. Resnick, 823 F.3d at 890–92. We therefore will con-
fine ourselves to the facts essential to an understanding of
the issue presented here.
In 2008, Mr. Resnick, a long-haul trucker, took a
nine-year-old boy, whom we will call A.M., along with him
1
on a multi-week work trip. Throughout that trip, Mr. Res-
nick repeatedly sexually assaulted A.M. and forced him to
view child pornography. At one point, when Mr. Resnick
was pulled over for skipping a weigh station, he put a gun to
A.M.’s head and threatened to kill him and his family if he
tried to tell anyone about the abuse. A.M. told no one about
Mr. Resnick’s actions for months after they returned to Indi-
ana, where A.M. lived.
On another occasion, Mr. Resnick invited A.M. and
A.M.’s friend, K.M., to a “pool party” at the hotel in Indiana
where Mr. Resnick was staying. A.M. managed to leave the
hotel early. K.M., who was eight years old at the time, was
1 Some of the filings refer to A.M. as T.M. We will use A.M. for con-
sistency with the district court’s opinion.
No. 20-1221 3
less fortunate. Mr. Resnick invited K.M. to spend the night at
the hotel, let K.M. hold a handgun, and then sexually abused
the child. K.M. did not immediately tell anyone about the
abuse, but eventually confided in his mother who alerted the
police.
In April 2011, law enforcement executed a search warrant
at Mr. Resnick’s Florida home. They seized a laptop that
A.M. later identified as the computer Mr. Resnick used to
show him pornography during the 2008 trip. A search of
Mr. Resnick’s digital devices uncovered dozens of hours of
child pornography videos. When FBI special agents inter-
viewed him about A.M.’s and K.M.’s allegations, Mr. Res-
nick at first claimed not to know the boys. When questioned
further, he changed his story and denied any inappropriate
conduct. A grand jury in the Southern District of Florida in-
dicted Mr. Resnick for possession of child pornography. He
reached an agreement with federal prosecutors there and
entered a guilty plea.
Later, a grand jury in the Northern District of Indiana in-
dicted Mr. Resnick for his abuse of A.M. and K.M. These ini-
tial Indiana charges included aggravated sexual abuse of a
minor and interstate transportation of child pornography, in
violation of 18 U.S.C. §§ 2241(c) and 2252(a)(1). Mr. Resnick
and the Government signed a plea agreement, but when a
dispute arose over Mr. Resnick’s refusal to admit to certain
conduct during the change of plea hearing, the agreement
fell apart.
The Government subsequently offered Mr. Resnick an
amended plea deal intended to avoid the earlier sticking
point, but Mr. Resnick rejected the Government’s offer. After
the breakdown in the plea negotiations, the Government ob-
4 No. 20-1221
tained a superseding indictment that added charges of bran-
dishing a firearm in furtherance of a crime of violence, 18
U.S.C. § 924(c)(1)(A)(ii), and being a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1).
Mr. Resnick proceeded to trial; a jury convicted him on
all counts. The court sentenced him to life imprisonment for
the sexual abuse and to a consecutive seven years’ impris-
onment for the brandishing a firearm charge.
Mr. Resnick appealed his conviction and sentence. We af-
firmed. Resnick, 823 F.3d 888. When his conviction became
final, Mr. Resnick filed this motion to vacate his conviction
and sentence under 28 U.S.C. § 2255, alleging that his trial
counsel was ineffective during the plea process, throughout
the pretrial and trial proceedings, and at sentencing. The dis-
trict court denied the motion, concluding that none of
Mr. Resnick’s alleged errors amounted to a violation of his
Sixth Amendment right to effective assistance of counsel.
Mr. Resnick now appeals the district court’s order denying
his motion.
II
DISCUSSION
When reviewing a district court’s denial of a § 2255 mo-
tion, we review factual findings for clear error and legal con-
clusions de novo. Hrobowski v. United States, 904 F.3d 566, 569
(7th Cir. 2018). Mr. Resnick alleges fourteen errors by his tri-
al counsel that, he contends, amount to ineffective assis-
tance. We will address Mr. Resnick’s allegation of ineffective
assistance during the plea process, then discuss his allega-
tions regarding the trial and sentencing proceedings.
No. 20-1221 5
A.
Mr. Resnick alleges that his counsel was ineffective dur-
ing the plea process and that this ineffectiveness caused him
to go to trial rather than plead guilty. Under the initial
agreement, Mr. Resnick would plead guilty to a transporta-
tion of child pornography charge, in exchange for the Gov-
ernment’s dismissing the aggravated sexual abuse of a mi-
nor charge (the gun charges had not yet been added via the
superseding indictment). The agreement set forth a Sentenc-
ing Guidelines calculation that included two enhancements.
The first was a seven-level enhancement under U.S.S.G.
§ 2G2.2(b)(3)(E) for distributing child pornography to a mi-
nor with the intention of persuading, inducing, enticing, co-
ercing or facilitating the travel of a minor to engage in pro-
hibited sexual conduct. The second was a five-level en-
hancement under U.S.S.G. § 2G2.2(b)(5) for engaging in a
pattern of activity involving the sexual abuse or exploitation
of a minor. Mr. Resnick and the Government further agreed
that “a sentence within the applicable Guideline range [was]
a fair and reasonable sentence” and that there was no basis
2
for the court to impose a sentence outside that range. Of
note, Mr. Resnick’s initial Guidelines range was life impris-
onment, but because the statutory maximum was twenty
years, twenty years became the applicable range. See
U.S.S.G. § 5G1.1(a). Lastly, the plea agreement was condi-
tioned on Mr. Resnick’s demonstrating acceptance of re-
sponsibility and permitted the Government to withdraw
from the deal if Mr. Resnick failed to do so.
2 R.23 ¶ 7(d)(iii).
6 No. 20-1221
When the day of the change of plea hearing arrived, the
agreement quickly fell apart. The Government set forth its
factual basis for the plea, which included Mr. Resnick’s
showing child pornography to and sexually abusing A.M.
When questioned by the presiding magistrate judge,
Mr. Resnick flatly denied having had sexual contact with
A.M. He also denied showing A.M. child pornography,
claiming instead that A.M. “found it on [Mr. Resnick’s]
3
computer himself.” Both of these denials undermined the
Guidelines enhancements included in the plea deal.
Mr. Resnick told the magistrate judge that he was agreeing
4
to the enhancements “for guideline purposes.” After an ex-
tended colloquy with the magistrate judge, Mr. Resnick ad-
mitted that he provided child pornography to A.M. He con-
tinued, however, to deny any sexual contact with A.M. dur-
ing their trip. Mr. Resnick claimed that possessing child por-
nography would constitute the conduct needed to support
the § 2G2.2(b)(5) enhancement, but the magistrate judge cor-
5
rectly noted that mere possession was insufficient. By this
point, the Government voiced concern that Mr. Resnick had
denied under oath the basis for two of the enhancements in
3 R.31 at 22.
4 Id. at 23.
5 U.S.S.G. § 2G2.2(b)(5) provides for a five-level enhancement “[i]f the
defendant engaged in a pattern of activity involving the sexual abuse or
exploitation of a minor.” The application notes to that Guidelines provi-
sion state that “‘[s]exual abuse or exploitation’ does not include posses-
sion, accessing with intent to view, receipt, or trafficking in material re-
lating to the sexual abuse or exploitation of a minor.” Id. cmt. n.1.
No. 20-1221 7
the plea deal. The magistrate judge shared the concern, indi-
cating that he would recommend that the district judge not
accept the plea.
At a subsequent hearing, this time before the district
judge, the Government again stated its view that Mr. Res-
nick’s denials during the first hearing breached the agree-
ment. The district court observed that there was “not really
an agreement [be]cause he’s not agreeing to all of the
6
terms.” Mr. Resnick’s counsel eventually conceded that
there was no agreement, and the court set a date for trial.
Ahead of the trial date, the Government offered Mr. Res-
nick an amended plea agreement. Under the new offer,
Mr. Resnick would plead guilty to transporting child por-
nography, in line with the first agreement, but without the
enhancements that proved to be the sticking point at the
change of plea hearing. The Government’s new offer was
under Federal Rule of Criminal Procedure 11(c)(1)(C) and
would guarantee a twenty-year sentence if the court accept-
7
ed the plea. Mr. Resnick rejected the Government’s amend-
6 R.157 at 4.
7 Federal Rule of Criminal Procedure 11(c)(1)(C) provides, in relevant
part:
An attorney for the government and the defendant’s at-
torney … may discuss and reach a plea agreement. … If
the defendant pleads guilty … to either a charged of-
fense or a lesser or related offense, the plea agreement
may specify that an attorney for the government will:
…
(continued … )
8 No. 20-1221
ed plea offer. Mr. Resnick’s gamble did not pay off. After his
conviction at trial, he was sentenced to life imprisonment.
Mr. Resnick now claims that his counsel was ineffective
for failing to seek specific performance of the first plea
agreement. To establish ineffectiveness during the plea pro-
cess, Mr. Resnick must make two showings. See Lafler v.
Cooper, 566 U.S. 156, 163 (2012). First, he must show that his
counsel’s performance fell below an objective standard of
reasonableness. Second, he must show prejudice. See id. In
the plea context, prejudice means showing both that it is rea-
sonably probable that absent his attorney’s deficient perfor-
mance he would have pleaded guilty and that “it is reasona-
bly probable that the judge would have imposed a lower
sentence.” Day v. United States, 962 F.3d 987, 992 (7th Cir.
2020); see also Lafler, 566 U.S. at 164.
We can resolve Mr. Resnick’s submission on the preju-
dice prong. His rejection of the amended plea offer prevents
him from establishing prejudice based on the first plea
agreement. There was no meaningful difference between the
first plea deal that Mr. Resnick claims his attorney should
have enforced through specific performance and the subse-
quent amended offer that Mr. Resnick rejected. For the first
( … continued)
(C) agree that a specific sentence or sentencing range is
the appropriate disposition of the case, or that a particu-
lar provision of the Sentencing Guidelines, or policy
statement, or sentencing factor does or does not apply
(such a recommendation or request binds the court once the
court accepts the plea agreement).
Id. (emphasis added).
No. 20-1221 9
plea deal, Mr. Resnick had agreed that a Guidelines sentence
without any departures or variances was reasonable. His
Guidelines range was twenty years’ imprisonment. For the
amended plea offer that he rejected, the guaranteed sentence
would have been the same twenty years’ imprisonment.
Mr. Resnick contends, however, that because the amend-
ed offer that he rejected was made under Rule 11(c)(1)(C),
the court could not have sentenced him below the Guide-
lines range, whereas the first deal maintained the district
court’s discretion to sentence him to less than twenty years.
Thus, he submits that the amended offer was less favorable,
and therefore did not remedy the alleged ineffectiveness of
his counsel in failing to obtain specific performance of the
first offer.
As he tries to distinguish the two plea offers, Mr. Resnick
poses the wrong question. When addressing prejudice here,
we do not ask whether the district court could have imposed
a different sentence under the first plea agreement. Rather,
we ask whether there is a reasonable probability that his sen-
tencing outcome would have been different under the first
agreement. See Day, 962 F.3d at 992 (asking whether “it is
reasonably probable that the judge would have imposed a
lower sentence”). In his brief and at oral argument, Mr. Res-
nick could not point to any reason why the district court
would have sentenced him below the Guidelines range if
counsel had obtained enforcement of the first plea deal. Alt-
hough he repeatedly emphasizes that the court could have
sentenced him to less than twenty years, that bald assertion
does not satisfy the ineffective assistance standard of rea-
sonable probability. Given his agreement in the first plea
deal that the Guidelines sentence of twenty years was rea-
10 No. 20-1221
sonable, and the absence of any viable mitigation arguments,
we are hard pressed to see why the district court would have
sentenced Mr. Resnick to anything other than twenty years
under the first plea deal. Indeed, even if we assume for ar-
gument’s sake that counsel erred in not seeking enforcement
of the first agreement, the amended plea offer would have
remedied any harm. Mr. Resnick’s rejection of the amended
offer means that he, not trial counsel, is responsible for the
sentence he ultimately received.
B.
Mr. Resnick also contends that his counsel was ineffec-
tive during the pretrial and trial proceedings. Again, to ob-
tain relief he must show that his counsel’s performance fell
below an objective standard of reasonableness and that, but
for counsel’s errors, there is a reasonable probability that the
outcome of the proceedings would have been different. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Mr. Resnick
identifies ten alleged errors by trial counsel during the pre-
trial and trial proceedings that he says amount to ineffective
assistance of counsel. None have merit.
1.
Mr. Resnick’s first assignment of error relates to the tes-
timony of the Government’s expert witness concerning
common features of child sexual abuse cases. During the tri-
al, the Government called Supervisory Special Agent Wil-
liam Donaldson of the FBI’s Behavioral Analysis Unit, who
testified about common features of child sexual abuse inves-
tigations. His testimony included the ways in which offend-
ers groom child victims and that those victims often do not
immediately report their abuse. Special Agent Donaldson
No. 20-1221 11
also explained the importance of child pornography to of-
fenders who abuse children. He relied in part on a study of
child sexual abuse offenders, the “Butner study,” to draw
the connection between possession of child pornography
and sexual abuse. Special Agent Donaldson’s testimony was
as an expert, and none of it related specifically to Mr. Res-
nick’s conduct.
In his § 2255 motion, Mr. Resnick contended that his
counsel was ineffective for failing to investigate, cross exam-
ine, or rebut Special Agent Donaldson’s testimony. He in-
cluded affidavits from an author of the Butner study and a
forensic psychologist. The information in those affidavits, he
says, would have provided his attorney a roadmap to rebut
Special Agent Donaldson’s testimony. The district court con-
cluded that Mr. Resnick failed to make a successful showing
on both Strickland prongs. On the performance prong, the
district court noted that Mr. Resnick’s trial counsel provided
an affidavit outlining his strategy of avoiding emphasis on
the Government’s expert witnesses and instead attacking
A.M.’s credibility. On the prejudice prong, the court con-
cluded that even if counsel rebutted the expert testimony, all
the jury would have learned is that not all experts agree on
the relationship between child pornography possession and
contact offenses.
Mr. Resnick renews his contentions here. Our view of the
issue is the same as the district court’s. Defense counsel pro-
vided an affidavit stating that his strategy was to allow the
Government to overplay its hand with expert testimony,
then ask the jury to “use common sense and logic and see
12 No. 20-1221
8
that such overkill looked ridiculous.” The record demon-
strates that Mr. Resnick’s trial counsel followed through on
that strategy. During closing arguments, he suggested to the
jury that the Government’s reliance on experts was a “smoke
and mirrors” trick to make up for the weakness of A.M.’s
9
credibility. To be sure, Mr. Resnick’s trial counsel could
have selected a different strategy. But that is not the issue.
Instead, Mr. Resnick must “present evidence to overcome
the strong presumption that his attorney was engaged in
reasonable trial strategy.” United States v. Memar, 906 F.3d
652, 659 (7th Cir. 2018). He has failed to do so. As the district
court noted, dueling experts on the correlation between
child pornography possession and contact offenses was
highly unlikely to sway the verdict, given that there was
substantial evidence that directly showed Mr. Resnick sex-
ually abused A.M. and K.M.
2.
Mr. Resnick’s second contention relates to his counsel’s
failure to counter the Government’s computer forensics ex-
pert with a rebuttal expert. Ahead of the trial, the Govern-
ment informed Mr. Resnick that it would call as an expert
witness Detective Brian Broughton, who examined Mr. Res-
nick’s computer after his Florida arrest. The Government’s
notice stated that Detective Broughton would testify as a
computer expert and explain his search of Mr. Resnick’s
computer, how peer-to-peer file sharing works, how child
8 R.184-1 ¶ 30.
9 Trial Tr.IV at 46.
No. 20-1221 13
pornography offenders obtain child pornography, and how
files are stored on computers. Shortly after the deadline to
notice witnesses had passed, Mr. Resnick’s trial counsel
sought leave to add a defense computer expert. The district
court denied that late-arriving request.
Mr. Resnick contends that his counsel was ineffective for
failing to call a rebuttal expert to counter Detective Brough-
ton’s testimony. He submits that failing to call a rebuttal ex-
pert witness prevented counsel from effectively disputing
the Government’s claim that Mr. Resnick purposefully de-
leted child pornography from his computer. The Govern-
ment, on the other hand, notes that there is no general re-
quirement that defense counsel call a rebuttal expert for eve-
ry expert that the Government calls. Moreover, the Govern-
ment observes that Mr. Resnick’s counsel effectively
cross-examined Detective Broughton, eliciting several im-
portant concessions.
To begin, Mr. Resnick’s claim fails because he has not
identified an “expert capable of supporting the defense
[who] was reasonably available at the time of trial.” Ellison v.
Acevedo, 593 F.3d 625, 634 (7th Cir. 2010). But even setting
this failure aside, there was no deficient performance. As the
district court observed: “counsel’s cross-examination of De-
tective Broughton was strong and highlighted the points
10
Resnick now argues an expert could have made.” Indeed,
counsel elicited important concessions from Detective
Broughton, including that he had not found child pornogra-
phy on the computer from the relevant time period, that he
10 R.198 at 25.
14 No. 20-1221
could not say whether Mr. Resnick searched for child por-
nography, and that he could not determine whether
Mr. Resnick had deleted files from certain parts of his hard
drive. It is difficult to see what a defense expert would have
added, and calls to mind the Supreme Court’s observation
that “Strickland does not enact Newton’s third law for the
presentation of evidence, requiring for every prosecution
expert an equal and opposite expert from the defense.” Har-
rington v. Richter, 562 U.S. 86, 111 (2011). Moreover, Mr. Res-
nick cannot show prejudice. Any expert testimony on
Mr. Resnick’s behalf would have been considerably under-
mined by his own plea agreement from the Florida proceed-
ings, in which he admitted he deleted child pornography
from the computer.
3.
Mr. Resnick also contends that trial counsel was ineffec-
tive for failing to introduce impeachment evidence about al-
leged prior sexual conduct by A.M. During the motion in
limine process, defense counsel sought permission to intro-
duce evidence of A.M.’s past sexual contact with K.M. In
particular, counsel argued for the admission of an incident
between A.M. and K.M. that K.M.’s mother encountered.
When questioned by K.M.’s mother, the boys disclosed
Mr. Resnick’s abuse. The court denied the motion.
Mr. Resnick’s contention fails for several reasons. As a
threshold matter, counsel did seek to admit the supposed
impeachment evidence. It was the court that denied the mo-
tion in limine. Moreover, the impeachment evidence that
Mr. Resnick says his counsel should have introduced was
No. 20-1221 15
clearly barred by Federal Rule of Evidence 412, and any ar-
11
gument to the contrary was meritless. As we have held,
counsel does not need to raise meritless arguments. See Long
v. United States, 847 F.3d 916, 920 (7th Cir. 2017). Mr. Resnick
contends that counsel should have argued that A.M. had a
history of making false accusations and therefore an excep-
tion to Rule 412 would be appropriate. But he has offered no
evidence at all that A.M. had such a history. We therefore
cannot say that counsel’s performance was unreasonable.
4.
Mr. Resnick next contends that his trial counsel was inef-
fective for failing to object when the Government introduced
evidence that he had refused to take a polygraph. The ad-
mission of the polygraph refusal was central to Mr. Resnick’s
direct appeal. See Resnick, 823 F.3d at 896. Because counsel
had not objected, we reviewed for plain error and found no
basis to reverse. In doing so, we noted that the admissibility
of a defendant’s refusal to take a polygraph was an unsettled
area of law. See id. at 897 (“The law is not settled, and the
case against Resnick was airtight.”). Mr. Resnick submits
that, had defense counsel timely objected to the polygraph
refusal being presented to the jury, the trial court would
have sustained the objection or we would have overturned
the conviction on appeal (in other words, without the plain
error standard, we would have reversed).
11 In relevant part, Federal Rule of Evidence 412 makes inadmissible
“evidence offered to prove that a victim engaged in other sexual behav-
ior.”
16 No. 20-1221
We cannot accept this argument. First, our case law pro-
vides that failure to object to an issue that is not settled law
within the circuit is not unreasonable by defense counsel.
See, e.g., Tucker v. United States, 889 F.3d 881, 885 (7th Cir.
2018) (“[W]e have held that a failure to anticipate a change
or advancement in the law does not qualify as ineffective as-
sistance.”). As we explained in Mr. Resnick’s direct appeal,
the law surrounding the admission of his refusal to take a
polygraph was far from clearly established at the time of his
trial. See Resnick, 823 F.3d at 897–98. We therefore cannot say
that trial counsel’s performance fell below an objective
standard of reasonableness.
As for Mr. Resnick’s contention regarding the standard of
review that applied in his direct appeal, we have noted that
plain error is comparable to (in fact, less demanding than)
Strickland prejudice. See Swanson v. United States, 692 F.3d
708, 717 (7th Cir. 2012) (“[T]he standard for plain error re-
view and ineffective-assistance-of-counsel are comparable,
and in some respects, plain error review may be less de-
manding.”). Mr. Resnick’s failure to overcome plain error
review of the polygraph issue in his direct appeal signals
that he cannot establish prejudice in his postconviction re-
view. And, at the risk of repetition, we note again that the
Government’s case was “airtight.” See Resnick, 823 F.3d at
897.
5.
Mr. Resnick’s next contention is that his counsel was inef-
fective for failing to object to A.M.’s testimony about the ef-
fect that Mr. Resnick’s assaults had on him. This testimony
included that he had night terrors after the assaults and that
he had trouble talking about his abuse. Mr. Resnick submits
No. 20-1221 17
that the testimony was unduly prejudicial, and his counsel
should have sought to exclude it from the trial. The Gov-
ernment responds that such testimony is common to explain
why the victim did not immediately report the assault.
Therefore, the Government submits, counsel was not ineffec-
tive for failing to exclude plainly admissible evidence.
The Government has the better argument. A.M.’s testi-
mony was highly probative. At trial, a key argument from
Mr. Resnick was that A.M. lied about the assault because
there was a significant delay between when the crime oc-
curred and when A.M. reported it. By testifying about the
trauma that he suffered and his inability to speak about the
assault for some time, A.M. offered probative evidence. See
Fed. R. Evid. 401. Mr. Resnick has provided nothing to sug-
gest that the risk of unfair prejudice substantially out-
weighed the probity. See Fed. R. Evid. 403. Because the tes-
timony was admissible, counsel was not ineffective for fail-
ing to object.
6.
Mr. Resnick submits that his counsel was ineffective for
failing to object when the Government introduced evidence
that his employer had a policy prohibiting passengers in its
drivers’ trucks, a policy which he violated by inviting A.M.
on the trip. He contends that Rule 404(b) bars admission of
the “no passenger policy” because it demonstrates a propen-
sity for breaking rules. His counsel’s failure to object,
Mr. Resnick contends, prejudiced him. The Government con-
tends that the “no passenger policy” evidence was largely
inconsequential, and surely outweighed by the other evi-
dence in the case.
18 No. 20-1221
In denying Mr. Resnick’s § 2255 motion, the district court
wrote that the “no passenger policy” “evidence was of mi-
nor significance. Its admission does not undermine confi-
12
dence in the overall outcome of his trial.” We believe that
the district court’s estimation of the impact of this evidence
is correct. We are confident that the jury’s attention was cap-
tured not by evidence of Mr. Resnick’s violating a corporate
policy, but rather by the evidence of his violent sexual abuse
of two young children.
7.
Mr. Resnick takes issue with his counsel’s failure to ob-
ject to the admission of his conduct around children on an
occasion unrelated to this case. During the trial, the Gov-
ernment introduced evidence that Mr. Resnick, while on a
camping trip with friends (unrelated to A.M. and K.M.),
once offered to drive three children home from the campsite.
Mr. Resnick contends that his counsel should have made a
relevance objection because the evidence did not suggest any
improper conduct. The Government responds that regard-
less of the relevancy, Mr. Resnick cannot show that but for
the admission of the evidence there is a reasonable probabil-
ity of a different outcome.
The Government is certainly correct. The testimony about
offering to drive the other children was hardly central to the
case. Because there is overwhelming direct evidence of
Mr. Resnick’s criminal activity, the campsite driving offer
has no impact on confidence in the outcome of this case.
12 R.198 at 38.
No. 20-1221 19
8.
Mr. Resnick also submits that his counsel was ineffective
for not objecting when the Government introduced the fac-
tual basis for his Florida plea to child pornography charges.
He contends that counsel was obligated to object to the ad-
mission of the Florida plea factual basis as unfairly prejudi-
cial under Federal Rule of Evidence 403.
This argument clearly fails. Mr. Resnick’s Florida convic-
tion was under 18 U.S.C. § 2251, which is in Chapter 110 of
Title 18. Rule 414 of the Federal Rules of Evidence provides:
“In a criminal case in which a defendant is accused of child
molestation, the court may admit evidence that the defend-
ant committed any other child molestation. The evidence
may be considered on any matter to which it is relevant.”
Under that rule, “child molestation” includes any offense in
Chapter 110 of Title 18, thus Mr. Resnick’s Florida conviction
fell within the rule’s scope. See Fed. R. Evid. 414(d)(2)(B).
And because the computer involved in the Florida prosecu-
tion was the same one that A.M. alleged Mr. Resnick used to
show him child pornography, the factual basis of the Florida
plea was extremely probative, and the probity was not sub-
stantially outweighed by the risk of unfair prejudice. Ac-
cordingly, it was admissible, and counsel was not ineffective
for failing to object to admissible evidence.
9.
Mr. Resnick’s next contention also involves evidence un-
covered on his computer in Florida. During the trial the
Government presented evidence that Mr. Resnick’s comput-
er contained written stories describing child molestation.
The Government did not reference any specific story, nor
20 No. 20-1221
were the stories themselves admitted. Mr. Resnick now
claims that his counsel was ineffective for failing to object to
the Government’s reference to the written stories being
found on his computer. He notes that possession of such
written stories is legal, and that reference to them may have
turned the jury against him. Mr. Resnick further contends
that his counsel should have sought a limiting instruction
about the stories but failed to do so.
Mr. Resnick is correct that possession of written stories
like those referenced during his trial is legal. Still, that does
not establish prejudice. Given that there was considerable
direct evidence, including his Florida plea agreement, that
Mr. Resnick possessed actual child pornography, the
written-stories evidence was of minor consequence. As for
the limiting instruction argument, we have held that “the
decision not to request a limiting instruction is solidly within
the accepted range of strategic tactics employed by trial
lawyers in the mitigation of damning evidence.” See United
States v. Gregory, 74 F.3d 819, 823 (7th Cir. 1996). We see no
basis to think that counsel’s decision not to seek a limiting
instruction was unreasonable.
10.
Mr. Resnick’s final contention related to his trial is that
even if none of the alleged errors by his counsel amounted to
ineffective assistance individually, taken together the errors
amount to a violation of his Sixth Amendment right. But
when “we have detected no unreasonable errors in assis-
tance, we cannot conclude that there was any cumulative ef-
fect from these errors that would have amounted to ineffec-
tive assistance of counsel as evaluated under the Strickland
parameters.” Yu Tian Li v. United States, 648 F.3d 524, 533
No. 20-1221 21
(7th Cir. 2011). That is the case here. Mr. Resnick has failed
to identify errors that could combine to overcome the Gov-
ernment’s strong case against him. In sum, Mr. Resnick’s
counsel did not provide ineffective assistance during the
pretrial and trial proceedings.
C.
With Mr. Resnick’s trial claim resolved, we turn to his
claim of ineffective assistance of counsel during his sentenc-
ing proceeding. Mr. Resnick focuses his claim on three deci-
sions by his counsel during sentencing that, in his view, led
the district court to impose a higher sentence than he other-
wise would have received.
Strickland’s two-prong standard applies to challenges
based on counsel’s alleged ineffectiveness at sentencing. See
Griffin v. Pierce, 622 F.3d 831, 844 (7th Cir. 2010). The perfor-
mance prong applies the same way for sentencing perfor-
mance as it does for trial performance: the petitioner must
show that counsel’s performance fell below an objective
standard of reasonableness. See id. at 843–44. For prejudice at
sentencing, the “petitioner must show that but for counsel’s
errors, there is a reasonable probability that he would have
received a different sentence.” Id. at 844.
1.
Mr. Resnick first focuses on the Government’s argument
that his child pornography collection should inform the sen-
tencing court’s assessment of his recidivism risk. In its sen-
tencing memorandum, the Government contended that
Mr. Resnick’s possession of child pornography during the
years after his sexual abuse of A.M. demonstrated his ongo-
ing sexual interest in prepubescent minors. An offender’s
22 No. 20-1221
collection of child pornography, according to the Govern-
ment, is a key indicator of the offender’s likelihood to com-
mit a future contact offense. Moreover, the Government ar-
gued, Mr. Resnick’s steps to act on his sexual interest in pre-
pubescent minors by attempting to groom children and by
continuing to download child pornography indicated that he
is likely to reoffend if the opportunity arose. In response,
Mr. Resnick’s counsel attempted to argue that Mr. Resnick’s
psychological evaluation did not show results typically asso-
ciated with pedophilia. Thus, defense counsel submitted, the
Government’s evidence about the typical recidivism of pe-
dophiles was inapplicable to Mr. Resnick.
In his § 2255 motion, Mr. Resnick contends that the Gov-
ernment’s sentencing memorandum relied implicitly on
Special Agent Donaldson’s testimony and on the Butner
study, which described recidivism risks for different types of
sex offenders. As we noted earlier, Mr. Resnick faults his
counsel for not challenging Special Agent Donaldson’s tes-
timony at trial. He also submits that his counsel should have
consulted with or presented an expert who could have re-
butted specific aspects of the Government’s recidivism ar-
gument.
When the district court examined Mr. Resnick’s argu-
ments, it concluded that defense counsel was not deficient,
nor did Mr. Resnick suffer any prejudice. In one part of its
analysis, the district court wrote that “[Mr.] Resnick’s con-
tinued sexual interest in minor children was only a part of
No. 20-1221 23
the constellation of evidence and argument that this court
13
considered when crafting [Mr.] Resnick’s sentence.”
Mr. Resnick renews his contentions here. He adds an ad-
ditional argument: that in analyzing the prejudice prong, the
district court impermissibly applied its subjective view that
it would not have imposed a different sentence, rather than
an objective view as required under the case law. The Gov-
ernment responds that the district court’s reference to the
factors it considered simply shows that there were abundant
bases for the sentence, not that the district court impermissi-
bly applied a subjective standard.
We conclude that the district court applied the proper
methodology and reached the correct result. Mr. Resnick’s
trial counsel did use an expert to rebut the Government’s ar-
gument. As we discuss in the next section, defense counsel’s
sentencing memorandum cited Leo Meagher, an expert who
evaluated Mr. Resnick. In doing so, defense counsel chal-
lenged the applicability of the Government’s claimed con-
nection between viewing child pornography and committing
contact offenses. Moreover, we have approved of sentencing
arguments in child sexual abuse cases that draw a connec-
tion between the specific form of child pornography found
in a defendant’s possession and that defendant’s risk of
committing contact offenses in the future. See United States v.
Garthus, 652 F.3d 715, 720 (7th Cir. 2011) (observing that
“[i]t’s a mistake to lump together different types of sex of-
fender,” and that “[t]he sadistic nature of much of the child
pornography consumed by the defendant is another reason
13 Id. at 46.
24 No. 20-1221
to worry about his being on the loose”). For that reason, we
cannot say that defense counsel was unreasonable in adopt-
ing a strategy that did not directly rebut the evidence that
the Government relied on for its recidivism argument, but
rather sought to show why that evidence was inapplicable to
Mr. Resnick.
As for Mr. Resnick’s contention that the district court ap-
plied the wrong standard to his § 2255 motion, we see no
14
merit. The district court did not apply a subjective standard
when it noted that it considered many pieces of evidence
when imposing Mr. Resnick’s life sentence. We have held
that district courts deciding a § 2255 motion must apply an
objective standard, not a subjective standard of whether that
particular judge would have sentenced differently absent
counsel’s error. See Harris v. Thompson, 698 F.3d 609, 648 (7th
Cir. 2012). Here, during its prejudice inquiry, the court’s ref-
erence to the evidence it considered simply indicates that
there was abundant evidence to support Mr. Resnick’s sen-
tence. That is an objective application of the prejudice prong.
Thus, Mr. Resnick cannot show deficient performance or
prejudice.
2.
Mr. Resnick’s next contention involves defense counsel’s
use of the psychological evaluation report written by Leo
14 Our conclusion that counsel’s performance was not deficient could
remove our need to discuss this contention. For the sake of completeness,
we think it is appropriate to explain why the district court applied the
proper methodology when examining prejudice.
No. 20-1221 25
15
Meagher. The Meagher report contained several observa-
tions unhelpful to Mr. Resnick. For instance, Meagher noted
that Mr. Resnick “is an extremely dominant individual,” that
“[h]e often blatantly ignores social rules and conventions,”
that he showed severe antisocial traits, and that he is an “ag-
16
gressive individual who acts out impulsively.” At the same
time, Meagher observed that “Mr. Resnick did not test with
characteristics typically seen in sex offenders and there were
no behaviors typical of child molesters indicated in the test-
17
ing.” In its sentencing presentation, the Government relied
on aspects of the Meagher report.
Mr. Resnick contends that counsel was ineffective for
submitting an expert report that was harmful to his mitiga-
tion defense. He claims that given other evidence, such as
letters of support, it would have been better to leave the po-
tentially harmful Meagher report out.
We cannot agree with Mr. Resnick’s assessment. The
Meagher report directly challenged a key Government ar-
gument: that Mr. Resnick is a pedophile. There is no doubt
that, from Mr. Resnick’s perspective, the Meagher report
contained harmful information alongside helpful infor-
mation. But defense counsel was not objectively unreasona-
ble for concluding that the good outweighed the bad. We
15 Meagher’s letterhead on the report indicates that he has a master’s
degree and is a licensed clinical professional counselor, certified criminal
justice specialist, and board-certified hypnotherapist. R.143-3 at 1.
16 Id. at 6, 8.
17 Id. at 1.
26 No. 20-1221
therefore cannot say that defense counsel’s decision to use
the report fell below an objective standard of reasonableness.
3.
Mr. Resnick’s final contention faults his attorney for not
presenting data about sentences for offenders convicted of
purportedly similar offenses. This argument lacks merit.
At the sentencing hearing, defense counsel argued for a
substantially below-Guidelines sentence of 360 months’ im-
prisonment. Now, Mr. Resnick submits that defense counsel
was ineffective for failing to present Sentencing Commission
data showing the mean and median sentences of offenders
sentenced under U.S.S.G. § 2A3.1 with a criminal history
category of VI, but who were not career offenders—in other
words, offenders who Mr. Resnick contends are similarly
situated to him. That data, Mr. Resnick says, would have
showed a mean sentence of 276 months’ imprisonment and a
median of 257 months’ imprisonment—far less than the life
sentence that the court imposed and the 360-month sentence
that counsel advocated for at the hearing.
Mr. Resnick’s contention has no merit. Mr. Resnick faced
a mandatory minimum 360-month sentence on Count I. On
top of that, he faced a mandatory consecutive 84-month sen-
tence for his conviction on Count III. That is to say, Mr. Res-
nick faced a combined 444-month mandatory sentence. It
was not objectively unreasonable, therefore, for counsel to
decide against presenting data to show that offenders with
Mr. Resnick’s criminal history category received an average
sentence of 276 months’ imprisonment and a median sen-
tence of 257 months. Such sentences, or even anything close
to them, simply were not a possibility for Mr. Resnick.
No. 20-1221 27
Moreover, Mr. Resnick’s presentence report provided an of-
fense level of 43, which corresponds to life in prison
(Mr. Resnick’s real offense level was 53, but that exceeded
the maximum level provided under the Guidelines of 43).
Counsel cannot be ineffective for declining to make such an
inapt sentencing argument.
Conclusion
Mr. Resnick has failed to establish that his trial counsel’s
performance during the plea process, trial, and sentencing
violated his Sixth Amendment right to effective assistance of
counsel. We, therefore, affirm the district court’s decision
denying his motion to vacate under 28 U.S.C. § 2255.
AFFIRMED