Resnick v. United States

• Decision Date: 03 August 2021
• Docket Number: No. 20-1221,20-1221
• Citation: 7 F.4th 611
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: David A. RESNICK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

7 F.4th 611

David A. RESNICK, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 20-1221

United States Court of Appeals, Seventh Circuit.

Argued May 21, 2021

Decided August 3, 2021

Jonathan Edelstein, Attorney, Alan Ellis, Attorney, Law Offices of Alan Ellis, Gualala, CA, for Petitioner-Appellant.

Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, for Respondent-Appellee.

Before Sykes, Chief Judge, and Ripple and Hamilton, Circuit Judges.

Ripple, Circuit Judge.

In adjudicating David Resnick's direct 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 defense counsel provided ineffective assistance. The district court denied the motion, and Mr. Resnick filed a timely appeal 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.

IBACKGROUND

We summarized Mr. Resnick's offenses in our opinion affirming his conviction and sentence on direct appeal, United States v. Resnick , 823 F.3d at 890–92. We therefore will confine 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 on a multi-week work trip.¹ Throughout that trip, Mr. Resnick 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 Indiana, 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 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 interviewed him about A.M.’s and K.M.’s allegations, Mr. Resnick 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 indicted 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 indicted Mr. Resnick for his abuse of A.M. and K.M. These initial 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 obtained a superseding indictment that added charges of brandishing 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’ imprisonment for the brandishing a firearm charge.

Mr. Resnick appealed his conviction and sentence. We affirmed. 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 district 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.

IIDISCUSSION

When 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.

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.

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 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 amended 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, 132 S.Ct. 1376, 182 L.Ed.2d 398 (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...