United States v. Messner
| Decision Date | 22 June 2022 |
| Docket Number | 21-1483 |
| Citation | 37 F.4th 736 |
| Parties | UNITED STATES of America, Appellee, v. Karl MESSNER, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Ines McGillion, with whom Ines McGillion Law Offices, PLLC was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom John J. Farley, United States Attorney, was on brief, for appellee.
Before Thompson, Kayatta, and Gelpí, Circuit Judges.
After pleading guilty to one count of possession of child pornography, Karl Messner was sentenced to an under-Guidelines-range sentence of 46 months. Invoking a narrow exception to his appellate waiver of that sentence, he now claims that his trial counsel was ineffective for failing to object on constitutional grounds to a four-level Guidelines enhancement. Because we conclude that the undisputed facts reveal Messner suffered no prejudice from any claimed deficient performance, we affirm.
We begin our history1 back in 2016, when the National Center for Missing and Exploited Children (NCMEC) got a tip from a website known as Chatstep.com that someone, using particular screennames like "janet" and "cindy," was uploading what appeared to be child pornography to various chat rooms on its website. Homeland Security Investigations got involved, and the IP (short for internet-protocol) addresses associated with the tips all linked back to one service provider in Weare, New Hampshire. When that service provider was subpoenaed, it forked over records indicating that the IP addresses were assigned to Messner.
After obtaining a search warrant, federal investigators appeared at Messner's door early one morning in October 2016. Still in his pajamas and bathrobe, Messner let the agents in and agreed to speak with them. In that conversation, Messner admitted that he used the internet service provider the agents had subpoenaed and also identified several computers in the house. Messner further admitted to agents that he used Chatstep to view child pornography, that he used various screennames on the website, and that he saved some unknown number of child-porn images, which he told investigators they would find on his laptop and thumb drives.
Messner disclaimed any interest in touching children and called his viewing of the child porn a "small diversion."
After federal investigators seized two laptops and several thumb drives from the home, they brought them in for forensic examination. On one laptop and one thumb drive, agents recovered fewer than 150 still images of child pornography. The photos were sent over to NCMEC, which reported back that 27 of the photos were of known minor victims.
After the parties attempted unsuccessfully to reach a pre-indictment resolution of this case, a federal grand jury handed down a one-count indictment charging Messner with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Messner moved to suppress the statements he gave to investigators on the morning of the search, but when that motion was unsuccessful, Messner reached an agreement with the government to plead guilty. As part of that agreement, Messner agreed that he waived his right to appeal or collaterally attack his sentence if it was within or lower than the Guidelines range determined by the court. Tucked in there, though, was a clause allowing him to appeal based on new legal principles with retroactive effect or based on ineffective assistance of counsel.2
Following the entry of Messner's plea, things then turned to the U.S. Probation Office, which prepared the PSR in this case. As part of that report, the probation officer described three images that were part of Messner's child-porn stash. Two images each depicted a naked pre-pubescent girl under the age of 12, with each photo's focal point on the young girl's genitals. The third photo, the probation officer said, "depicts an adult male penis penetrating the vagina of a toddler-aged female." Messner did not object to the PSR's factual description of those images.
Based on the conduct depicted in the photos, the initial draft of the PSR applied a four-level enhancement under U.S.S.G. § 2G2.2(b)(4) () because the offense involved material that "portrays sexual abuse or exploitation of an infant or toddler," subparagraph (B) of that Guidelines provision. Messner's first trial counsel objected to that enhancement,3 arguing that "the material did not portray" the sexual abuse or exploitation of an infant or toddler and directing the probation officer to the enhancement's application notes, but without further elaboration. But again, counsel did not object to the PSR's description of the nature of the photographs reviewed. Responding to the objection, the probation officer said that the four-level enhancement under § 2G2.2(b)(4) applied because one photo depicted an adult male penis penetrating the vagina of a toddler-aged female. The probation officer thus relied on the contention that the photo qualified as sadistic or masochistic -- subparagraph (A) of the Guidelines section. The probation officer made no changes to the PSR, leaving the PSR with a reference to § 2G2.2(b)(4) (with no subparagraph) and the notation that the material portrays the sexual abuse or exploitation of an infant or toddler -- a nod to subparagraph (B) of the Guidelines section. Still, the probation officer's response invoking the sadistic-or-masochistic enhancement was submitted to the district court as an addendum to the final version of the PSR, which the court acknowledged reading. When Messner's original trial counsel submitted the first sentencing memorandum, he added no further argument that the sadistic-or-masochistic enhancement would not apply.
After some time passed, Messner's new trial counsel filed a new sentencing memorandum. In that memo, Messner's counsel conceded -- relying on the PSR's description of the photographs -- that "the evidence ... supports that Mr. Messner possessed a single photograph depicting sexual abuse of a toddler," citing to the PSR's descriptions of the three photographs. At sentencing, Messner's counsel did not object to any of the Guidelines calculations, thus conceding that (at least in her view) the four-level enhancement under § 2G2.2(b)(4) was legally sound -- though she did advocate that the court should view that four-level enhancement as steep and thus depart or vary downward from the Guidelines range.
The district court ultimately took up Messner's bid to give him a sentence more lenient than the Guidelines recommended. The Guidelines range put Messner's sentence between 70 and 87 months. The district court, however, thought that in this case the Guidelines over-punished based on the number of images at issue and therefore applied a two-level downward variance (on top of the two-level reduction the government had already agreed to). That put the adjusted Guidelines-range sentence between 46 and 57 months, see U.S.S.G. ch. 5, pt. A (sentencing table) (2018), and the district court handed Messner a sentence on the bottom end of that range -- 46 months in prison. That sentence was, indeed, within or lower than the Guidelines range determined by the court, so Messner's appellate waiver applies.
Undeterred, Messner filed a timely notice of appeal and now, armed with new appellate counsel, seeks to shoehorn his appeal into the narrow exception in his appellate waiver.4
Cognizant of his appeal waiver, Messner now contends that his sentencing proceedings were infected by ineffective assistance of his counsel because counsel failed to object on constitutional grounds to the four-level enhancement under U.S.S.G. § 2G2.2(b)(4)(B).
Under the Sixth Amendment, criminal defendants have the right to competent counsel at various "critical stages of a criminal proceeding," including (as relevant here) at their sentencing proceedings. Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). In assessing a defendant's claim that counsel was constitutionally ineffective (and thus rose to the level of a Sixth Amendment violation), we follow the two-part test set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that standard, a defendant must show both (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced her defense. Id.
We measure counsel's performance under the first prong using an "objective standard of reasonableness." United States v. Ortiz-Vega, 860 F.3d 20, 28 (1st Cir. 2017) (quoting United States v. Márquez-Pérez, 835 F.3d 153, 165 (1st Cir. 2016) ). To show deficiency, the defendant has to fight off the strong presumption we apply that counsel's performance was adequate and that she "made all significant decisions in the exercise of reasonable professional judgment." United States v. Rivera-Ruperto, 852 F.3d 1, 8 (1st Cir. 2017) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052 ).
To show prejudice in the context of ineffective assistance at sentencing, a defendant must show a reasonable probability that, but for incompetent counsel's errors, she would have received a lesser sentence. United States v. Grace, 367 F.3d 29, 37 (1st Cir. 2004) ; see Lafler, 566 U.S. at 165, 132 S.Ct. 1376 . By reasonable probability, we mean "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. That doesn't mean that the defendant has to show that the deficient performance "more likely than not altered the outcome," but it does mean the defendant has to show a "substantial, not just conceivable" probability of a different result. United States v. Baptiste, 8 F.4th 30, 35 (1st Cir. 2021) (...
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