322 F.3d 443 (7th Cir. 2003), 02-2010, United States v. Rezin

Docket Nº:02-2010.
Citation:322 F.3d 443
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frederick C. REZIN, Defendant-Appellant.
Case Date:March 04, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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322 F.3d 443 (7th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,


Frederick C. REZIN, Defendant-Appellant.

No. 02-2010.

United States Court of Appeals, Seventh Circuit.

March 4, 2003

Argued Jan. 21, 2003.

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Paul LaZotte (argued), Madison, WI, for Petitioner-Appellant.

Timothy M. O'Shea, Rita M. Rumbelow (argued), Office of U.S. Attorney, Madison, WI, for Respondent-Appellee.

Before POSNER, KANNE, and DIANE P. WOOD, Circuit Judges.

POSNER, Circuit Judge.

The defendant, Frederick Rezin, pleaded guilty to possession of child pornography, 18 U.S.C. § 2252(a)(4)(B), and was sentenced to 10 years in prison. He filed a notice of appeal but later dismissed it and filed a motion under 28 U.S.C. § 2255 to vacate his sentence on the ground that he had received ineffective assistance of counsel at the sentencing hearing because the lawyer had failed to argue against a statutory interpretation that authorized the sentence. The motion was denied, precipitating this appeal.

A claim of ineffective assistance of counsel, we have said many times, is indeed better made in postconviction proceedings than in a direct appeal from the sentence, to enable the district court to "hold a hearing, if necessary, to learn what motivated attorneys to make the choices which were made." United States v. Yack, 139 F.3d 1172, 1176 (7th Cir.1998); see also United States v. Davenport, 986 F.2d 1047, 1050 (7th Cir.1993); United States v. Taglia, 922 F.2d 413, 417-18 (7th Cir.1991). But this is in general rather than in every case. If the claim plainly does not require any sort of hearing to evaluate, then unless the lawyer whose assistance is in question was the defendant's lawyer on direct appeal as well (for he can hardly have been expected to accuse himself of ineffective assistance, or, for that matter, to have noticed the oversight now claimed to have rendered his assistance ineffective), the failure to appeal causes the claim to be forfeited. E.g., Olmstead v. United States, 55 F.3d 316, 320 (7th Cir.1995); Guinan v. United States, 6 F.3d 468, 471-73 (7th Cir.1993); United States v. Taglia, supra, 922 F.2d at 418. The interest in finality of criminal judgments and thus in minimizing collateral attacks upon them requires this result, unless the defendant has a good reason, such as ineffective assistance by his appellate counsel, for being relieved from the forfeiture. See id. at 418; Norris v. United States, 687 F.2d 899, 903 (7th Cir.1982).

That at any rate is the rule in this circuit, and in the Second Circuit as well. Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir.1993). The Third and Tenth Circuits disagree, however, United States v. DeRewal, 10 F.3d 100, 103-04 and n. 2 (3d Cir.1993); United States v. Galloway, 56 F.3d 1239, 1240-43 (10th Cir.1995) (en banc), and the Supreme Court has now granted certiorari to resolve the intercircuit

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conflict. Massaro v. United States, 536 U.S. 990, 123 S.Ct. 31, 153 L.Ed.2d 893 (2002). No matter; forfeiture can be waived, and was here, so we move directly to the merits of the argument that Rezin's trial lawyer failed to make at the sentencing hearing.

Rezin's maximum sentence would have been five years had the district court not determined that he had a prior conviction under state law for a sex crime against a minor. 18 U.S.C. § 2252(b)(2). The prior conviction was for third-degree sexual assault, in violation of a Wisconsin statute, against two minors. Rezin does not deny that the victims were minors. But he points out that the Wisconsin statute does not require that the victims be minors for the perpetrator to be guilty of third-degree assault, and he argues that his lawyer should have argued at the sentencing hearing that section 2252(b)(2) does not authorize additional punishment for an offense unless the victim's age was a statutory element, whatever the facts may be.

The government argues that the lawyer had no duty to make this argument because it's a loser. Well, it is, as we'll see. But it is not the case that a lawyer can never be found to have failed to come up to minimum...

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