David Resnick v. United States of America

Chicago, IL- Criminal defense lawyer represented defendant with aggravated sexual abuse of a minor and interstate transportation of child pornography charges. He now files a direct appeal from his convictions and life sentences.

hen reviewing a district court's denial of a § 2255 motion, we review factual findings for clear error and legal conclusions de novo. Hrobowski v. United States, 904 F.3d 566, 569

(7th Cir. 2018). Mr. Resnick alleges fourteen errors by his trial counsel that, he contends, amount to ineffective assistance. We will address Mr. Resnick's allegation of ineffective

assistance during the plea process, then discuss his allegations regarding the trial and sentencing proceedings.

No. 20-1221 5

A.

Mr. Resnick alleges that his counsel was ineffective during 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 transportation of child pornography charge, in exchange for the Government's dismissing the aggravated sexual abuse of a minor charge (the gun charges had not yet been added via the

superseding indictment). The agreement set forth a Sentencing 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 minor with the intention of persuading, inducing, enticing, coercing or facilitating the travel of a minor to engage in prohibited sexual conduct. The second was a five-level enhancement 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

for the court to impose a sentence outside that range.2 Of

note, Mr. Resnick's initial Guidelines range was life imprisonment, 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 conditioned on Mr. Resnick's demonstrating acceptance of responsibility 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]

computer himself.”3 Both of these denials undermined the

Guidelines enhancements included in the plea deal.

Mr. Resnick told the magistrate judge that he was agreeing

to the enhancements "for guideline purposes.”4 After an extended colloquy with the magistrate judge, Mr. Resnick admitted that he provided child pornography to A.M. He continued, however, to deny any sexual contact with A.M. during their trip. Mr. Resnick claimed that possessing child pornography would constitute the conduct needed to support

the § 2G2.2(b)(5) enhancement, but the magistrate judge correctly noted that mere possession was insufficient.5 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 provision state that "'[s]exual abuse or exploitation' does not include possession, accessing with intent to view, receipt, or trafficking in material relating 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, indicating 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. Resnick's denials during the first hearing breached the agreement. The district court observed that there was "not really

an agreement [be]cause he's not agreeing to all of the

terms.”6 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. Resnick an amended plea agreement. Under the new offer,

Mr. Resnick would plead guilty to transporting child pornography, 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 accepted the plea.7 Mr. Resnick rejected the Government's amend6 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 attorney ... may discuss and reach a plea agreement. ... If

the defendant pleads guilty ... to either a charged offense 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 process, 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 reasonably probable that absent his attorney's deficient performance he would have pleaded guilty and that "it is reasonably 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 prejudice 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 subsequent 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 particular 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 amended offer that he rejected was made under Rule 11(c)(1)(C),

the court could not have sentenced him below the Guidelines 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 sentencing 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. Resnick 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. Although 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 reasonable 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 argument'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 ineffective during the pretrial and trial proceedings. Again, to obtain 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 pretrial 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 testimony of the Government's expert witness concerning

common features of child sexual abuse cases. During the trial, the Government called Supervisory Special Agent William Donaldson of the FBI's Behavioral Analysis Unit, who

testified about common features of child sexual abuse investigations. His testimony included the ways in which offenders 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 offenders 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. Resnick's conduct.

In his § 2255 motion, Mr. Resnick contended that his

counsel was ineffective for failing to investigate, cross examine, or rebut Special Agent Donaldson's testimony. He included 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 concluded 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 concluded 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 provided 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

that such overkill looked ridiculous.”8 The record demonstrates 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

credibility.9 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 sexually 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 expert with a rebuttal expert. Ahead of the trial, the Government informed Mr. Resnick that it would call as an expert

witness Detective Brian Broughton, who examined Mr. Resnick'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 Broughton's testimony. He submits that failing to call a rebuttal expert witness prevented counsel from effectively disputing

the Government's claim that Mr. Resnick purposefully deleted child pornography from his computer. The Government, on the other hand, notes that there is no general requirement that defense counsel call a rebuttal expert for every expert that the Government calls. Moreover, the Government observes that Mr. Resnick's counsel effectively

cross-examined Detective Broughton, eliciting several important 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 Detective Broughton was strong and highlighted the points

Resnick now argues an expert could have made.”10 Indeed,

counsel elicited important concessions from Detective

Broughton, including that he had not found child pornography 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 pornography, 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.” Harrington v. Richter, 562 U.S. 86, 111 (2011). Moreover, Mr. Resnick cannot show prejudice. Any expert testimony on

Mr. Resnick's behalf would have been considerably undermined by his own plea agreement from the Florida proceedings, in which he admitted he deleted child pornography

from the computer.

3.

Mr. Resnick also contends that trial counsel was ineffective for failing to introduce impeachment evidence about alleged prior sexual conduct by A.M. During the motion in

limine process, defense counsel sought permission to introduce 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 motion 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 argument to the contrary was meritless.11 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 exception 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 ineffective for failing to object when the Government introduced

evidence that he had refused to take a polygraph. The admission 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 behavior.”

16 No. 20-1221

We cannot accept this argument. First, our case law provides 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 assistance.”). 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 review and ineffective-assistance-of-counsel are comparable,

and in some respects, plain error review may be less demanding.”). 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 review. 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 ineffective for failing to object to A.M.'s testimony about the effect 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 Government responds that such testimony is common to explain

why the victim did not immediately report the assault.

Therefore, the Government submits, counsel was not ineffective for failing to exclude plainly admissible evidence.

The Government has the better argument. A.M.'s testimony 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 occurred 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 suggest that the risk of unfair prejudice substantially outweighed the probity. See Fed. R. Evid. 403. Because the testimony was admissible, counsel was not ineffective for failing 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 propensity for breaking rules. His counsel's failure to object,

Mr. Resnick contends, prejudiced him. The Government contends that the "no passenger policy” evidence was largely

inconsequential, and surely outweighed by the other evidence 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 minor significance. Its admission does not undermine confidence in the overall outcome of his trial.”12 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 captured 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 object to the admission of his conduct around children on an

occasion unrelated to this case. During the trial, the Government 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 regardless of the relevancy, Mr. Resnick cannot show that but for

the admission of the evidence there is a reasonable probability 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 factual basis for his Florida plea to child pornography charges.

He contends that counsel was obligated to object to the admission of the Florida plea factual basis as unfairly prejudicial under Federal Rule of Evidence 403.

This argument clearly fails. Mr. Resnick's Florida conviction 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 defendant 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 prosecution 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 substantially outweighed by the risk of unfair prejudice. Accordingly, it was admissible, and counsel was not ineffective

for failing to object to admissible evidence.

9.

Mr. Resnick's next contention also involves evidence uncovered on his computer in Florida. During the trial the

Government presented evidence that Mr. Resnick's computer 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 assistance, we cannot conclude that there was any cumulative effect from these errors that would have amounted to ineffective 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 Government'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 sentencing proceeding. Mr. Resnick focuses his claim on three decisions by his counsel during sentencing that, in his view, led

the district court to impose a higher sentence than he otherwise 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 performance prong applies the same way for sentencing performance 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 sentencing court's assessment of his recidivism risk. In its sentencing memorandum, the Government contended that

Mr. Resnick's possession of child pornography during the

years after his sexual abuse of A.M. demonstrated his ongoing sexual interest in prepubescent minors. An offender's

22 No. 20-1221

collection of child pornography, according to the Government, is a key indicator of the offender's likelihood to commit a future contact offense. Moreover, the Government argued, Mr. Resnick's steps to act on his sexual interest in prepubescent 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 associated with pedophilia. Thus, defense counsel submitted, the

Government's evidence about the typical recidivism of pedophiles was inapplicable to Mr. Resnick.

In his § 2255 motion, Mr. Resnick contends that the Government'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 testimony at trial. He also submits that his counsel should have

consulted with or presented an expert who could have rebutted specific aspects of the Government's recidivism argument.

When the district court examined Mr. Resnick's arguments, 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 continued sexual interest in minor children was only a part of

No. 20-1221 23

the constellation of evidence and argument that this court

considered when crafting [Mr.] Resnick's sentence.”13

Mr. Resnick renews his contentions here. He adds an additional 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 Government 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 impermissibly 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 argument. 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 challenged the applicability of the Government's claimed connection between viewing child pornography and committing

contact offenses. Moreover, we have approved of sentencing

arguments in child sexual abuse cases that draw a connection 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 offender,” 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 adopting 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 applied the wrong standard to his § 2255 motion, we see no

merit.14 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 reference to the evidence it considered simply indicates that

there was abundant evidence to support Mr. Resnick's sentence. 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

Meagher.15 The Meagher report contained several observations 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 "aggressive individual who acts out impulsively.”16 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 testing.”17 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 mitigation defense. He claims that given other evidence, such as

letters of support, it would have been better to leave the potentially harmful Meagher report out.

We cannot agree with Mr. Resnick's assessment. The

Meagher report directly challenged a key Government argument: that Mr. Resnick is a pedophile. There is no doubt

that, from Mr. Resnick's perspective, the Meagher report

contained harmful information alongside helpful information. But defense counsel was not objectively unreasonable 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' imprisonment. 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 sentence for his conviction on Count III. That is to say, Mr. Resnick 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 sentence 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 offense 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.

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