                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                    REVISED FEBRUARY 6, 2004                January 14, 2004

              IN THE UNITED STATES COURT OF APPEALS     Charles R. Fulbruge III
                      FOR THE FIFTH CIRCUIT                     Clerk

                   __________________________

                          No. 02-30697
                   __________________________



UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,

                             versus

ROBERT RANDALL REINHART,
                                               Defendant-Appellant.


       ___________________________________________________

          Appeal from the United States District Court
              for the Western District of Louisiana

       ___________________________________________________

Before DAVIS, WIENER and STEWART, Circuit Judges.

WIENER, Circuit Judge:

     Petitioner-Appellant Robert Randall Reinhart filed a motion

under 28 U.S.C. § 2255 challenging the sentence imposed following

his 1997 guilty plea to one count of conspiracy to commit sexual

exploitation of children.    The district court denied both his

motion and his request for a certificate of appealability (“COA”).

We subsequently granted a COA on the sole issue whether Reinhart’s

counsel was ineffective for failing to appeal the district court’s

decision to hold him accountable in sentencing for two minor males

depicted in a pornographic videotape created by his co-conspirator
prior to the formation of the conspiracy.                  Concluding that the

district court erred in denying Reinhart’s requested relief, we

reverse the denial of his § 2255 motion and grant such relief,

vacating his sentence and remanding for resentencing.

                          I. FACTS AND PROCEEDINGS

      Early in 1997, the German National Police learned of the

existence     of   an    Internet     website     containing        eleven    child

pornography    files     transmitted    by    Precision    Electric      Billboard

Services of Charlotte, North Carolina (“Precision Electric”).                    The

German   police    relayed   this     information     to    the   United     States

government (the “government”) which traced the files to Reinhart

and his roommate, Matthew Carroll.              Reinhart was a customer of

Precision Electric and had been using its home page services to

transmit child pornography files via the Internet.

      Government officials obtained and executed a search warrant

for   Reinhart     and    Carroll’s    residence      in     Lafayette       Parish,

Louisiana.    The search uncovered 1800 images of child pornography

on Reinhart’s computer storage media, including ten of the files

identified by the German police.            Agents also seized several rolls

of film and videotapes depicting pornographic images of children,

as well as diskettes, video cameras, and 35mm film cameras.

      The day after the search, Reinhart surrendered a videotape to

the   FBI   depicting    Carroll    engaging     in   oral    and    anal     sexual

intercourse with two (2) minor males who were then 13 and 14 years



                                        2
old, identified as minor white male 2 and minor white male 4

(“minors 2 and 4”).     Reinhart told the agents that, in June 1997,

Carroll had transported the tape to an individual in Houston, Texas

who made and retained a copy.      A search of Reinhart’s computer also

provided agents with evidence that Reinhart had accompanied Carroll

on this trip to Houston.           Specifically, agents found a text

document describing a trip that Reinhart took with Carroll to

Houston in June 1997 “to copy some pornography tapes.”                 This

description was part of a series of entries compiled by Reinhart in

documenting his activities in the conspiracy.

     The Presentence Investigation Report (“PSR”) for Reinhart

describes the particular entry as follows:          “Randy (Reinhart) and

Matt (Carroll) went to Texas to visit a friend of Matt’s.             While

there, Matt and his friend were involved in taking nude pictures of

boys ages 7, 9, and 13.          This is not the first time this has

happened.    This weekend trip was supposed to be to see another

friend of Matt’s so they could copy some pornography tapes.”

According to the PSR, Reinhart later informed the agents that

Carroll took a copy of the videotape of minors 2 and 4 with him on

this trip to Houston.

     Reinhart    and   Carroll   were    indicted   on   twelve   counts   of

production and distribution of child pornography in violation of 18

U.S.C. § 2251(a) and 18 U.S.C. § 2252(a)(2).1              Both defendants


     1
         18 U.S.C. § 2251(a)(2000); 18 U.S.C. § 2252(a)(2) (2000).

                                     3
pleaded guilty in November 1997 to one count of conspiracy to

commit sexual exploitation of children in violation of 18 U.S.C. §

2251(a).2     The following spring, the district court sentenced

Reinhart    to    235   months   imprisonment,    three    years   supervised

release,    and     a   $100     special     assessment.        Adopting    the

recommendations contained in the PSR, the district court held

Reinhart accountable for the exploitation of four minor male

victims, including minors 2 and 4.

     At Reinhart’s initial sentencing hearing, his counsel timely

objected    to    the   district   court’s    decision     to   hold   Reinhart

accountable for the exploitation of all four minors.                   Regarding

minors 2 and 4, counsel argued that the government had produced no

evidence that Reinhart assisted in the creation of the videotape of

these two minors.        To this end, counsel noted that the evidence

showed that the tape was created in June 1996, more than five

     2
         Section 2251(a) states:

     Any person who employs, uses, persuades, induces,
     entices, or coerces any minor to engage in, or who has a
     minor assist any other person to engage in, or who
     transports any minor in interstate or foreign commerce,
     or in any Territory or Possession of the United States,
     with the intent that such minor engage in, any sexually
     explicit conduct for the purpose of producing any visual
     depiction of such conduct, shall be punished as provided
     under subsection (e), if such person knows or has reason
     to know that such visual depiction will be transported in
     interstate or foreign commerce or mailed, if that visual
     depiction was produced using materials that have been
     mailed, shipped, or transported in interstate or foreign
     commerce by any means, including by computer, or if such
     visual depiction has actually been transported in
     interstate or foreign commerce or mailed.

                                       4
months    prior   to     December    15,    1996,    the    date    charged     in   the

indictment as the date of the commencement of the conspiracy.                        The

district      court    did   not   take     issue   with    Reinhart’s        counsel’s

characterization of the evidence related to the creation of the

videotape, but overruled his objection on the basis that Carroll’s

exploitation of minors 2 and 4 in creating the tape formed part of

the relevant conduct of Reinhart’s offense for which Reinhart could

be held accountable under U.S.S.G. § 1B1.3.3

     On appeal, Reinhart’s counsel re-urged his objections to the

inclusion of minors 1 and 3 in the guideline calculation but did

not challenge the district court’s inclusion of minors 2 and 4.

Reinhart’s trial counsel also wrote and filed                    Reinhart’s original

brief    on    appeal,    from     which    any    discussion      of   his   client’s

accountability for minors 2 and 4 was omitted.                    Trial counsel then

withdrew, and Reinhart retained new appellate counsel to file his

reply brief.          As Reinhart correctly notes, however, his newly-

retained counsel was constrained by trial counsel’s failure to

brief    the    issue     on     appeal.4         Thus,    our    determination      of

ineffectiveness relates solely to trial counsel’s performance, in

his role as Reinhart’s initial appellate counsel, in failing to




     3
         U.S. Sentencing Guidelines Manual § 1B1.3 (2002).
     4
       See United States v. Green, 46 F.3d 461, 465 n.3 (5th
Cir.1994) (issues raised for the first time in defendant’s reply
brief are considered waived).

                                            5
brief on appeal the issue of Reinhart’s accountability for minors

2 and 4.

     We affirmed the district court’s decision to include minor 3,

but vacated and remanded for resentencing on the government’s

concession that the district court had improperly included minor 1

in the guideline calculation.     The district court subsequently

resentenced Reinhart to 210 months imprisonment.

     In August, 2001, Reinhart filed a motion in the district court

to vacate, set aside or correct sentence under 18 U.S.C. § 2255.

One of the four issues raised in his habeas petition was an

ineffective assistance of counsel claim based on his trial counsel

cum appellate counsel’s failure to appeal the district court’s

finding that the relevant conduct of his offense included the

exploitation of minors 2 and 4.   In her Report and Recommendation,

the Magistrate Judge rejected each of the grounds presented in

Reinhart’s petition, including his claim of ineffective assistance

of appellate counsel.   The district court adopted the Magistrate

Judge’s Report and Recommendation in its entirety and denied

Reinhart’s request for a COA.     We granted a COA only as to the

ineffective assistance of appellate counsel claim.   We stated the

issue as follows:

     Whether “[Reinhart’s] attorney was ineffective for
     failing to argue on appeal that Reinhart should not be
     held accountable for purposes of sentencing for males #2
     and #4 because he did not participate in the making of
     the videotape involving those minors and the videotape
     was made prior to the dates charged in the conspiracy.
     Given that there is a question as to when the videotape

                                  6
      of Carroll having intercourse with [these] two minors was
      made and whether the 18 U.S.C. § 2251(a) offense with
      respect to that videotape occurred at the time it was
      made or at the time it was transported in interstate
      commerce or both, it is debatable whether Reinhart should
      have been held accountable for males #2 and #4 at
      sentencing.”

      A panel of this court subsequently affirmed the district

court’s denial of habeas relief in an unpublished opinion,5 and

Reinhart’s counsel timely filed a petition for panel rehearing. We

granted the petition for rehearing on September 12, 2003 and,

having considered the issue as stated in the COA, now reverse the

district     court’s    denial    of   habeas    relief    and   remand   for

resentencing consistent with this opinion.

                                 II. ANALYSIS

A.   Standard of Review

      The    district   court    determined     that   Reinhart’s   appellate

counsel was not ineffective because the adjustment for minors 2 and

4 was proper under the guidelines.         We review the district court’s

interpretation of the guidelines de novo and its factual findings

for clear error.6

      “A criminal defendant has a constitutional right to receive

effective assistance of counsel on direct appeal.”7              We analyze a


      5
          No. 02-30697 (July 15, 2003).
      6
          See United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir.
1994).
      7
       United States v. Phillips, 210 F.3d 345, 348 (5th Cir.
2000)(citing Hughes v. Booker, 203 F.3d 894, 895 (5th Cir. 2000)).

                                       7
defendant’s claim of ineffective assistance of appellate counsel

using the familiar two-part Strickland test.8        First, we determine

whether      appellate   counsel’s   performance   was   constitutionally

deficient.9 Second, we determine whether that deficiency prejudiced

the defendant.10

B.   Deficient Performance

          Appellate counsel is not deficient for not raising every non-

frivolous issue on appeal.11     To the contrary, counsel’s failure to

raise an issue on appeal will be considered deficient performance

only when that decision “fall[s] below an objective standard of

reasonableness.”12       This standard requires counsel “to research

relevant facts and law, or make an informed decision that certain

avenues will not prove fruitful.”13       “Solid, meritorious arguments

based on directly controlling precedent should be discovered and

brought to the court’s attention.”14        Thus, to determine whether

Reinhart’s appellate counsel’s performance was substandard, we must


      8
       See id. at 348 (citing Strickland v. Washington, 466 U.S.
668, 687 (1994); United States v. Williamson, 183 F.3d 458, 462
(5th Cir. 1999)).
      9
           See id.
      10
           See id.
      11
       See id. (citing United States v. Williamson, 183 F.3d 458,
462 (5th Cir. 2000)).
      12
           Id. (citing Strickland, 466 U.S. at 688).
      13
           Id.
      14
           Id. (citing Williamson, 183 F.3d at 462-63).

                                      8
consider whether Reinhart’s challenge to his accountability for the

exploitation of minors 2 and 4 has sufficient merit such that his

counsel was deficient in failing to raise the issue on appeal.

     Under § 2G2.1, the offense level of a defendant who pleads

guilty to sexual exploitation of children in violation of 18 U.S.C.

§ 2251(a) is determined, in part, by the number of minors exploited

in the commission of the offense.15     Specifically, § 2G2.1(c)(1)

requires the sentencing court to treat each minor exploited as

though the exploitation of that minor was contained in a separate

count of conviction.16      Before the sentencing court can apply §

2G2.1(c)(1), however, it must look first to § 1B1.3 to ascertain

whether the “relevant conduct of the offense includes more than one

minor being exploited.”17

     Section 1B1.3(a)(1)(B) defines the relevant conduct of a

conspiracy as encompassing “all reasonably foreseeable acts and



     15
       U.S.S.G. § 2G2.1. Reinhart pleaded guilty to conspiracy to
sexually exploit children in violation of 18 U.S.C. § 2251(a), to
which offense guideline § 2G2.1(“Sexually Exploiting a Minor by
Production of Sexually Explicit Visual or Printed Material”)
applies. U.S.S.G. App. A.
     16
        U.S.S.G. § 2G2.1(c)(1)(“If the offense involved the
exploitation of more than one minor, Chapter Three, Part D
(Multiple Counts) shall be applied as if the exploitation of each
minor had been contained in a separate count of conviction.”).
     17
       Application Note 2, U.S.S.G. § 2G2.1 (“Special instruction
(c)(1) directs that if the relevant conduct of an offense of
conviction includes more than one minor being exploited, whether
specifically cited in the count of conviction of not, each such
minor shall be treated as if contained in a separate count of
conviction.”)

                                   9
omissions of others in furtherance of the jointly undertaken

criminal    activity.”18        We    have       interpreted   this     provision    as

requiring a showing that the conduct sought to be attributed to the

defendant is both (1) reasonably foreseeable and (2) within the

scope of the defendant’s agreement.19 We have also made clear “that

the ‘reasonable foreseeability’ requirement...is prospective only,

and...cannot include conduct occurring before the defendant joined

the conspiracy.”20

     In     challenging        his    sentencing       accountability       for     the

exploitation of minors 2 and 4, Reinhart points out that the

videotape of these minors was created by Carroll alone, long before

the conspiracy’s formation in December 1996.                   Thus, he argues, he

cannot be held accountable as a co-conspirator for the exploitation

of   minors     2    and   4   because       §     1B1.3(a)(1)(B)’s      “reasonable

foreseeability” requirement does not permit a defendant to be held

accountable     for    conduct       that    occurred    before    he    joined     the

conspiracy.         The government responds that, even if Reinhart’s

assertion that the videotape was created prior to the conspiracy is



     18
        U.S.S.G. § 1B1.3(a)(1)(B)(emphasis added).          Section
1B1.3(a)(1)(B) provides that, “in the case of jointly undertaken
criminal activity (a criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with others, whether or not
charged as a conspiracy), [the relevant conduct of the offense
includes] all reasonably foreseeable acts and omissions of others
in furtherance of the jointly undertaken criminal activity.”
     19
          Carreon, 11 F.3d at 1228.
     20
          Id.

                                            10
correct, the § 2251(a) offense with respect to minors 2 and 4 was

not complete when Carroll created the tape, but instead remained

inchoate until the tape was transported from Louisiana to Texas in

June 1997, during the course of the conspiracy.                  The government’s

argument goes that, because the offense was incomplete until the

tape    was    transported     in   interstate       commerce,    well    after    the

formation of the conspiracy, the subsequent transport of the tape

during the conspiracy, and thus the exploitation of minors 2 and 4,

was conspiratorial conduct “reasonably foreseeable” by Reinhart,

for    which     he   could    properly        be   held    accountable    under    §

1B1.3(a)(1)(B).

       At the outset, we note that none dispute that Reinhart played

no role in the creation of the videotape.                  The government protests

that it never agreed with Reinhart’s assertion that the videotape

was    created    before      Reinhart    joined     the     conspiracy,   yet     the

government did not contest this assertion at Reinhart’s initial

sentencing, and has never offered or alluded to any evidence that

would tend to show that the videotape was made during the course of

the conspiracy.       Most importantly, the government did not —— and

presently does not —— take issue with the district court’s finding

that Carroll sent images from the videotape to Reinhart via email

prior to Reinhart’s move to Carroll’s Louisiana residence in

December 1996.21       As the conspiracy did not commence until “on or

       21
         In overruling Reinhart’s objection to the inclusion of
minors 2 and 4, the district court found that Reinhart communicated

                                          11
about December 15, 1996,” the only sensible inference is that the

videotape was made by Carroll prior to the formation of the

conspiracy.    We therefore conclude that Reinhart’s assertion that

the videotape was created solely by Carroll, prior to the formation

of the conspiracy, to be a correct characterization of the evidence

related to the creation of the tape.

     A finding that the videotape was created by Carroll prior to

the conspiracy does not, of course, resolve entirely the issue

before us, given the government’s argument that the § 2251(a)

offense related to the videotape remained inchoate until the tape’s

transport interstate.     In advancing this argument, however, the

government fails to acknowledge that there are two kinds of §

2251(a) violations —— one covering the situation when the defendant

has knowledge at the time the visual depiction is created that it

would be transported across state lines; the other covering the

situation when the defendant has no such knowledge at the time the

depiction is created but thereafter actually transports the visual

depiction across state lines.22    That these are alternative forms

of § 2251(a) liability is further evidenced by the use of the

disjunctive in the final element of § 2251(a):      A pornographer

violates § 2251(a) if (1) “[he] knows or has reason to know that



with Carroll over the Internet and obtained images from the
videotape from Carroll prior to the defendant’s relocation to
Lafayette.
     22
          See 18 U.S.C. § 2251(a) (2000).

                                  12
[the] visual depiction will be transported in interstate or foreign

commerce or mailed, or” (2) “if such visual depiction has actually

been transported in interstate or foreign commerce or mailed.”23

In the case of a violation based on allegations of actual transport

of pornography, the offense cannot be complete until the moment the

depiction is transported across state lines, and thus remains

inchoate until that transport occurs.    In contrast, a § 2251(a)

violation predicated on a defendant’s knowledge or intent to

transport pornography, formed at the time of its creation, does not

remain inchoate, but rather is complete the moment the depiction is

created with the requisite knowledge or intent. In the latter such

instance, the government need not prove that the depiction was

actually transported across state lines, thus the time of actual

transport is irrelevant in determining the time at which the

offense occurred.

     Because the inchoate character of a § 2251(a) offense depends

on whether it is premised on the actual transport of pornography or

on the existence of the intent to transport pornography at the time

of the depiction’s creation, a sentencing court must determine

which variety of § 2251(a) liability forms the basis of the

conspiratorial activity at issue to ascertain when the predicate

offense related to the videotape occurred vis-à-vis the formation

of the conspiracy.


     23
          Id. (emphasis added).

                                  13
     In the instant case, the government chose not to charge

Reinhart and Carroll with the type of § 2251(a) liability that

would remain inchoate until the actual transport of the videotape

in interstate commerce. Instead, both defendants were charged with

and pleaded guilty to one count of conspiracy to create child

pornography     “knowing         that      such       visual     depictions        will    be

transported in interstate commerce.”                      As the defendants’ liability

was premised solely on the intent to transport pornography when it

was created rather than its actual transport, the § 2251(a) offense

with respect to the videotape of minors 2 and 4 —— and thus the

exploitation of minors 2 and 4 —— occurred when Carroll created the

videotape,     which     was     prior     to       the    conspiracy’s      formation     in

December 1996 and did not continue beyond that point.                          It follows

that Reinhart cannot be held accountable for the exploitation of

minors    2   and    4   under      §    1B1.3(a)(1)(B)         because,      as   we     have

demonstrated, that provision does not hold a defendant accountable

for “the conduct of members of a conspiracy prior to the defendant

joining the     conspiracy,          even      if    the    defendant     knows    of     that

conduct.”24         As   we    held       in     United       States    v.    Carreon,      §

1B1.3(a)(1)(B)’s         “reasonable            foreseeability”         requirement        is

“prospective        only,     and       consequently         cannot    include      conduct

occurring before the defendant joined the conspiracy.”25


     24
          Application note 2, U.S.S.G. § 1B1.3.
     25
          Carreon, 11 F.3d at 1228.

                                               14
     Reinhart’s      case      is   thus    distinguishable    from   the    case

addressed by the Second Circuit in United States v. Sirois,26 cited

by the government in support of its argument that the § 2251(a)

offense related to the videotape of minors 2 and 4 remained

inchoate until the moment of its actual transport.               The defendant

in Sirois was convicted of violating various federal statutes

proscribing the sexual exploitation of minors, including one count

of aiding and abetting a schoolteacher in the exploitation of a

minor male student in violation of § 2251(a).27               Specifically, the

indictment charged that the schoolteacher had transported the minor

across state lines for the purpose of having the minor engage in

sexual activity so that photographs of that activity might be

produced, and that the defendant aided and abetted the offense by

taking the photographs.28           Unlike the instant case, however, the

indictment in Sirois further asserted that the photographs actually

crossed    state    lines.29        Thus,   the   schoolteacher’s     §   2251(a)

liability was premised on the actual transport of the photographs

interstate, not on his knowledge that the photographs would be so

transported.




     26
          87 F.3d 34 (2d Cir. 1996).
     27
          See id. at 37-38.
     28
          See id.
     29
          See id.

                                           15
     On appeal, the defendant in Sirois challenged the jury charge,

arguing that the schoolteacher’s § 2251(a) violation occurred as

soon as he transported the minor across state lines and that

subsequent conduct, including the defendant’s photographing of the

sexual    activity,   did   not   give    rise   to   aiding   and   abetting

liability.30    In rejecting this argument, the Second Circuit held

that “a violation of § 2251(a) that is based on the actual

transportation of child pornography across state lines cannot be

complete until the pornography is so transported.”31             The Second

Circuit held that the jury was entitled to find the defendant

guilty of aiding and abetting the schoolteacher’s § 2251(a) offense

because the defendant assisted in the creation of the visual

depictions that were subsequently transported —— no allegation of

knowledge at the creation of the depictions that transport would

eventually occur.32     The court went on to state, however, that,

because § 2251(a) requires either that the pornography actually be

transported in interstate commerce or that the defendant know or

have reason to know that the pornography will be so transported, it

did not hold that “all violations of § 2251(a) remain inchoate

until the pornography crosses state lines.”33          Rather, it expressly



     30
          See id. at 38.
     31
          Id.
     32
          See id. at 39.
     33
          Id. (emphasis added).

                                     16
declined to decide whether a § 2251(a) violation premised solely on

a defendant’s original intent to transport would remain ongoing

until the photographs were transported interstate.34                  Accordingly,

we do not create a circuit split by holding today that the §

2251(a) offense with respect to the videotape of minors 2 and 4,

premised as it was on Carroll’s original intent to transport, was

complete on creation of the videotape predating the conspiracy’s

formation.

      The government’s other arguments for upholding Reinhart’s

sentencing accountability for the exploitation of minors 2 and 4

are equally unsupportable.           Its contention that Reinhart should be

held accountable for what the government ambiguously terms the

“instant conduct” of the conspiracy, i.e., all criminal conduct

attributable to the conspiracy, fails to acknowledge the crucial

distinction          between     criminal          liability   and         sentencing

accountability.        We have consistently held that these two concepts

are   not    coextensive       and   that    §     1B1.3(a)(1)(B)’s    “reasonable

foreseeability” requirement must be applied to limit a defendant’s

accountability        in   sentencing        for    the   conduct     of    his   co-

conspirators.35




      34
           See id.
      35
        See Carreon, 11 F.3d at 1234 (the Sentencing Commission has
“emphatically rejected the notion that criminal liability and
sentencing accountability are coextensive”).

                                            17
      We likewise reject the government’s fallacious suggestion that

counsel chose not to challenge Reinhart’s accountability for minors

2   and    4   out   of   a    concern     that,   instead    of   remanding   for

resentencing, we might have remanded for further factual findings

related to the creation of the tape, and that these additional

findings might have resulted in an increased sentence. The obvious

flaw in this supposition, of course, is that a simple review of the

evidence related to the tape, as set forth in the PSR and adopted

by the district court, makes clear that Carroll created the tape

without     Reinhart’s        assistance   prior   to   the   formation   of   the

conspiracy.      As these are the only facts related to the tape that

are necessary to resolve the issue before us, any possibility of

remand for factual findings was remote at best and fails to support

the government’s argument that counsel had a “strategic” reason for

not raising what is, as described above, a meritorious appellate

issue.

      We are also unpersuaded by the government’s argument that

Reinhart could be held accountable for the exploitation of minors

2 and 4 under § 2G2.2,36 the offense guideline applicable to 18

U.S.C. § 2252(a)(2).37           Section 2252(a)(2) proscribes the knowing


      36
        U.S.S.G. § 2G2.2 (“Trafficking in Material Involving the
Sexual Exploitation of a Minor; Receiving, Transporting, Shipping,
or Advertising Material Involving the Sexual Exploitation of a
Minor; Possessing Material Involving the Sexual Exploitation of a
Minor with Intent to Traffic.”).
      37
           18 U.S.C. § 2252(a)(2) (2000).

                                           18
receipt of child pornography.          Although the government indicted

Reinhart   under    §   2252(a)(2)    in   addition   to    §    2251(a),   the

government voluntarily dismissed all counts based on alleged §

2252(a)(2) violations when Reinhart pleaded guilty to conspiracy to

violate § 2251(a).      Accordingly, § 2G2.2 is unavailable for use in

his sentencing calculation and thus affords no support for the

district court’s adjustment for minors 2 and 4.

      Finally, we reject the government’s argument that, even if

Reinhart cannot be held accountable for both minors, he can still

be held accountable for minor 2 based on the PSR’s statement that

Reinhart showed minor 2 pornographic materials during the course of

the conspiracy in an effort to induce him to engage in sexual

conduct.   Section 2G2.1(c)(1) specifies that the relevant conduct

of a § 2251(a) offense includes only those minors who have actually

been exploited; it contains no provision for holding a defendant

accountable in sentencing for attempting to entice a minor to

engage in sexual conduct. Thus, without further evidence of actual

exploitation, the fact that Reinhart showed minor 2 pornographic

images, does not warrant an adjustment under § 2G2.1(c)(1).

      In sum, because the conspiratorial liability charged in the

indictment was premised on the knowledge or intent to transport

pornography interstate when the depiction was created, rather than

its actual transport interstate, the exploitation of minors 2 and

4   occurred   at   the   moment     Carroll   created     the   pornographic

videotape, a time that clearly pre-dated the formation of the

                                      19
conspiracy.      It follows that the district court erred in holding

Reinhart accountable for the exploitation of minors 2 and 4 in

light of our controlling precedent in Carreon, as that conduct

occurred before he joined the conspiracy.                  Accordingly, we hold

that Reinhart had a meritorious appellate issue regarding whether

the   district      court   properly   included       minors   2   and    4   in   the

guideline calculation and that his counsel was deficient for not

raising this issue on appeal.

C. Prejudice

      We next consider whether Reinhart was prejudiced by his

appellate counsel’s deficiency.            To establish prejudice, Reinhart

must show “that there is a ‘reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different.’”38         “A reasonable probability is that which

renders the proceeding unfair or unreliable, i.e., undermines

confidence     in    the    outcome.”39        When   a   claim    of    ineffective

assistance of counsel is premised on counsel’s failure to raise an

issue on appeal, “the prejudice prong first requires a showing that

[this Court] would have afforded relief on appeal.”40 Thus, we must




      38
           Phillips, 210 F.3d at 350 (citing Strickland, 466 U.S. at
694)).
      39
           Williamson, 183 F.3d at 463.
      40
           Phillips, 210 F.3d at 350.

                                          20
“counter-factually determine the probable outcome on appeal had

counsel raised the argument.”41

     Had Reinhart’s initial appellate counsel briefed the issue of

Reinhart’s       accountability   for   minors   2   and   4,    we   would   have

reviewed “‘the district court’s interpretation of the Sentencing

Guidelines de novo and its factual findings...for clear error.’”42

As the district court committed reversible error in attributing to

Reinhart Carroll’s pre-conspiratorial exploitation of minors 2 and

4 in the court’s relevant conduct determination under § 1B1.3,43 we

would     have     vacated   Reinhart’s      sentence      and   remanded     for

resentencing without the inclusion of minors 2 and 4.                   Reinhart

correctly notes that, without the inclusion of minors 2 and 4 in

the guideline calculation, his offense level would have been lower

by 3 levels and his guideline imprisonment range would have been

121-151 months, not 168-210 months.          This would have resulted in a

sentence shorter by five years than the one imposed.44




     41
          Id. (citing Williamson, 183 F.3d at 463).
     42
       Phillips, 210 F.3d at 351 (citing United States v. Huerta,
182 F.3d 361, 364 (5th Cir. 1999)).
     43
        See Carreon, 11 F.3d at 1241 (sentencing court’s error in
holding defendant accountable under § 1B1.3(a)(1)(B) for conduct
occurring before he joined the conspiracy warrants vacatur of
defendant’s sentence and remand for resentencing).
     44
          See U.S.S.G. § 3D1.4.

                                        21
     The    government,    relying     on   our    precedent   in   Spriggs     v.

Collins,45 insists that this five-year difference in Reinhart’s term

of imprisonment is not “significant” enough to warrant a finding of

prejudice.       In    Spriggs,   we    held      that,   to   prevail     on   an

ineffectiveness claim premised on a noncapital sentencing error, a

petitioner must show that “there is a reasonable probability that

but for [the attorney’s] errors [his]...sentence would have been

significantly     less    harsh.”46     The    “significantly       less   harsh”

standard reflected our concern that, particularly in jurisdictions

without sentencing guidelines, where courts typically possess a

wide range of sentencing discretion, “reversal without a showing

that ‘the sentence would have been significantly less harsh’ would

lead to an ‘automatic rule of reversal.’”47

     Reinhart correctly counters that the Supreme Court’s recent

decision in Glover v. United States,48 and not Spriggs, states the

proper standard for assessing whether the second prong of the

Strickland test is met in his case.            Elaborating on Strickland’s

prejudice requirement in the context of a noncapital error under

the Sentencing Guidelines, the Glover Court held that, even though

the amount by which a defendant’s sentence is increased by a



     45
           993 F.2d 85 (5th Cir. 1993).
     46
          Id. at 88.
     47
          Phillips, 210 F.3d at 351 (citing Spriggs, 993 F.2d at 88).
     48
          531 U.S. 198 (2001).

                                       22
particular    decision       may   be   a    factor      in   determining   whether

counsel’s    failure    to    raise     an       issue   constituted   ineffective

assistance, “under a determinate system of constrained discretion

such as the Sentencing Guidelines, it cannot serve as a bar to a

showing of prejudice.”49           In so holding, the Court rejected the

Seventh Circuit’s requirement that the sentencing error result in

a “significant” increase in the defendant’s term of imprisonment,

stating that “any amount of actual jail time has Sixth Amendment

significance.“50 Our cases since Glover have acknowledged that this

ruling “arguably cast doubt on the Spriggs ‘significantly less

harsh’ rule and may have impliedly rejected it in total.”51

     We need not, however, decide today whether or to what extent

Glover abrogates Spriggs, as we are convinced that the five-year

     49
          Id. at 204.
     50
          Id. at 203.
     51
       Daniel v. Cockrell, 283 F.3d 697, 706 (5th Cir. 2002); see
also United States v. Ridgeway, 321 F.3d 512, 515            n. 2.
Acknowledging the possible abrogation of the Spriggs standard, the
Daniel panel nevertheless held that Spriggs’ “significantly less
harsh” standard applied to a defendant’s ineffective assistance of
counsel claim premised on a Texas noncapital sentencing error on
the grounds that the defendant’s conviction was finalized prior to
the date Glover was decided and that Glover does not apply
retroactively.   See Daniel, 283 F.3d at 706-07.     In Reinhart’s
case, however, although his sentence was vacated and remanded for
resentencing in October 2000 without the inclusion of minor 1, his
resentencing did not take place until February 2001 and an amended
judgment was not entered until March 2001. As Glover was decided in
January 2001 before Reinhart’s new sentence was assessed, the non-
retroactivity principle does not barthe application of Glover to
his case.   Thus, to the extent that Glover may have abrogated
Spriggs, Reinhart would receive any benefit resulting from that
abrogation.

                                            23
increase in Reinhart’s sentence suffices to establish prejudice

under either standard.52        Accordingly, we conclude that Reinhart

has   shown    the   requisite    prejudice    necessary    to   establish

ineffective assistance of appellate counsel.

                            III. CONCLUSION

      For the foregoing reasons, we reverse the district court’s

denial of Reinhart’s § 2255 motion, vacate his sentence, and remand

for   resentencing    without    including    minors   2   and   4   in   the

calculation.

REVERSED; SENTENCE VACATED; REMANDED for resentencing.




      52
       As a five year increase is significantly more than the “year
or two” sentencing difference that concerned the panel in Spriggs,
Reinhart has succeeded in showing that this sentence would have
been “significantly less harsh” but for his counsel’s error. See
Spriggs, 993 F.2d at 88 (“[a]rguably, when the discretionary
sentencing range is great, practically any error committed by
counsel could have resulted in a harsher sentence, even if only by
a year or two.”).

                                    24
