                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3582
                         ___________________________

                                  Ernest W. Haney,

                        lllllllllllllllllllllMovant - Appellant,

                                           v.

                             United States of America,

                       lllllllllllllllllllllRespondent - Appellee.
                                        ____________

                     Appeal from United States District Court
                    for the Western District of Missouri - Joplin
                                  ____________

                           Submitted: February 13, 2020
                               Filed: June 12, 2020
                                 ____________

Before SMITH, Chief Judge, COLLOTON and STRAS, Circuit Judges.
                              ____________

COLLOTON, Circuit Judge.

      Ernest Haney pleaded guilty to receipt and distribution of a visual depiction
involving the use of a minor engaging in sexually explicit conduct. The district court
sentenced him to 180 months in prison. The next year, Haney moved to vacate his
sentence under 28 U.S.C. § 2255 based on alleged ineffective assistance of counsel.
The district court1 denied relief. We conclude that counsel’s performance was
objectively reasonable, and we therefore affirm.

                                          I.

       Haney’s prosecution arose from an investigation in which law enforcement
officers accessed, through a peer-to-peer file-sharing program, several videos
depicting child pornography. Based on the internet protocol address that was used
to share the images, police identified the physical address of the source as a home
where Haney lived with his mother. They obtained a search warrant for the residence
and seized three computers, several disks containing data, and Haney’s iPhone
device. Investigators found videos and images depicting child pornography on the
seized devices. Haney admitted downloading child pornography on a computer that
was equipped with a file-sharing program called Ares.

       Haney pleaded guilty to knowingly receiving and distributing a visual
depiction involving the use of a minor engaging in sexually explicit conduct, in
violation of 18 U.S.C. § 2252(a)(2) and 2252(b)(1).2 To provide a factual basis for
the plea, the prosecution stated that if the case proceeded to trial, the evidence would
show as follows:

      The defendant was advised of his Miranda rights and agreed to speak to
      Detective Williams. The defendant acknowledged owning the computer
      on which he installed the Ares file-sharing software and that he used to

      1
      The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
      2
       The judgment refers to the offense as “Possession and Distribution of Child
Pornography,” R. Doc. 62, but “possession” is not a prohibited act under 18 U.S.C.
§ 2252(a)(2), and the indictment charged that Haney “received and distributed” the
visual depictions. R. Doc. 1.

                                          -2-
      download child pornography. In the ensuing questioning, Haney
      confessed that he had, in fact, downloaded child pornography and
      specifically used search terms such as “PTHC” and “tiny” to obtain such
      images.

When questioned by the court, Haney acknowledged that he committed the acts set
forth in the statement of factual basis.

      Haney’s claim of ineffective assistance of counsel relates to the sentencing
guidelines. The draft presentence report stated that Haney installed and used the file-
sharing program to download child pornography, and applied a two-level increase for
a defendant who knowingly engaged in distribution of child pornography. See USSG
§ 2G2.2(b)(3)(F). Haney’s attorney initially objected to the two-level increase, but
then withdrew the objection at the sentencing hearing. The district court applied the
increase, found that Haney accepted responsibility for his criminal conduct under
USSG § 3E1.1, and calculated a total offense level of 34. The court then determined
an advisory guideline range of 235 to 240 months’ imprisonment, granted Haney’s
request for a downward variance from the range based on 18 U.S.C. § 3553(a), and
sentenced him to a term of 180 months. Haney did not appeal.

       Haney later moved to vacate his sentence under 28 U.S.C. § 2255 on the
ground that his attorney’s alleged ineffectiveness at sentencing deprived him of the
right to counsel under the Sixth Amendment. He claimed that counsel performed
ineffectively when he failed to make arguments based on Haney’s alleged ignorance
that his file-sharing program distributed child pornography. In support, Haney
submitted affidavits from his mother and daughter. Both averred that Haney’s
daughter, not Haney, installed the file-sharing software on the computer, and that
Haney did not know that the program automatically shared downloaded material with
other users. His mother stated that she and Haney so advised counsel before the
sentencing hearing.



                                         -3-
       In his post-conviction motion, Haney maintained that counsel should have
presented this evidence at sentencing. He argued that counsel should have objected
to the two-level increase for knowing distribution of child pornography based on
United States v. Durham, 618 F.3d 921, 932 (8th Cir. 2010), which held that a
defendant’s “concrete evidence of ignorance” about file sharing makes the increase
inapplicable. He also challenged counsel’s failure to argue for a two-level decrease
under USSG § 2G2.2(b)(1). That adjustment applies to a defendant whose conduct
was “limited to the receipt or solicitation” of material involving sexual exploitation
of a minor, and who “did not intend to traffic in, or distribute,” such material.

      The district court denied the motion without an evidentiary hearing. The court
concluded that counsel’s performance was not deficient because Haney admitted to
police and in the plea colloquy that he installed the file-sharing software on his
computer. The court reasoned that Haney “admitted to the facts giving rise to the
enhancement,” so “any objection to the enhancement would have been meritless.”
Alternatively, the court concluded that Haney was not prejudiced by counsel’s
performance. The court reasoned that even if the two arguments had been pursued
successfully, the resulting advisory guideline range would have been 151 to 188
months in prison, and Haney’s sentence of 180 months is within that range.

       We review the district court’s legal conclusions de novo and any factual
findings for clear error. Calkins v. United States, 795 F.3d 896, 897 (8th Cir. 2015).
A district court may resolve a motion under § 2255 without a hearing if “the files and
records of the case conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b).

                                          II.

      To obtain relief on a claim of ineffective assistance of counsel, a prisoner must
show that counsel’s performance was deficient, and that the deficient performance

                                         -4-
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “Our
scrutiny of counsel’s performance is ‘highly deferential;’ the movant must show that
counsel’s performance fell ‘outside the wide range of professionally competent
assistance’ that is sufficient to satisfy the Sixth Amendment.” Allen v. United States,
829 F.3d 965, 967 (8th Cir. 2016) (quoting Strickland, 466 U.S. at 689-90) (internal
citations omitted). We “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689. “The relevant question is not whether counsel’s choices were strategic,
but whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000).

       Haney maintains that counsel’s deficient performance caused a four-level
swing in the guideline calculation at sentencing. We can dispense quickly with two
of the disputed levels. Haney asserts that counsel was ineffective in failing to seek
a two-level decrease under USSG § 2G2.2(b)(1). That decrease, however, is available
only to a defendant whose conduct was “limited to the receipt or solicitation” of child
pornography; it does not apply to a defendant who distributed child pornography,
whether he did so knowingly or not. United States v. Ray, 704 F.3d 1307, 1313-14
(10th Cir. 2013). Distribution means “any act . . . related to the transfer of material
involving the sexual exploitation of a minor.” USSG § 2G2.2, comment. (n.1). It is
undisputed that Haney distributed child pornography through the file-sharing program
on his computer, even accepting his current position that he did not know about the
operation of the program. Therefore, the sentencing argument under § 2G2.2(b)(1)
had no merit, and counsel was not ineffective in declining to advance it.

      Haney also renews his argument that counsel unreasonably withdrew the
objection to a two-level increase under § 2G2.2(b)(3)(F) for a defendant who
knowingly engaged in distribution of child pornography. Haney suggests that the
defense should have presented evidence from his daughter and mother that he was
ignorant about the file-sharing software on his computer. With that evidence, Haney



                                         -5-
contends, there was a straightforward legal argument that the two-level increase
would not apply under our precedent in Durham.

       The situation confronting Haney’s counsel, however, was not so simple.
Unlike the defendant in Durham, who was convicted only of receiving child
pornography, 618 F.3d at 923, Haney had pleaded guilty to an indictment that
charged him with receiving and distributing child pornography. One element of the
distribution offense is that the defendant knowingly distributed child pornography.
18 U.S.C. § 2252(a)(2). By pleading guilty to the indictment without qualification,
Haney formally admitted to the elements of the offenses charged. McCarthy v.
United States, 394 U.S. 459, 466 (1969). Haney also admitted at the guilty plea
hearing that “he installed the Ares file-sharing software” on the computer from which
child pornography was distributed. R. Doc. 44, at 7-8.

       To pursue the objection under USSG § 2G2.2(b)(3)(F), therefore, it would have
been necessary for Haney’s counsel to retract or explain away Haney’s prior
admissions. Only then could he substitute the facts presented by Haney’s daughter
and mother, and plausibly claim that Haney was ignorant of any distribution. That
approach would have entailed substantial risk: it was reasonable to fear that the
district court could have disbelieved Haney and his family members, given Haney’s
inconsistent statements, bias of the witnesses, and credibility issues arising from a
previous incident in 2006. On that occasion, Haney’s daughter reported to police that
Haney possessed child pornography, but Haney’s mother questioned the daughter’s
veracity and persuaded police not to pursue an investigation or charges. This history
led the district court at sentencing to conclude that “the implication that he didn’t
fully understand what he was getting into, I’m not buying it.” So if counsel had
pressed the objection, the district court could well have held Haney to his prior
admissions and found that he knowingly distributed child pornography through the
file-sharing program.



                                         -6-
      In that case, not only would Haney have failed in his objection to the two-level
increase, but he would have jeopardized his three-level decrease for acceptance of
responsibility if the court found that he falsely denied relevant conduct. See USSG
§ 3E1.1, comment. (n.1(A)); United States v. Zeaiter, 891 F.3d 1114, 1124 (8th Cir.
2018); United States v. Fischer, 551 F.3d 751, 755 (8th Cir. 2008). Even worse, he
would have risked incurring a two-level increase for obstruction of justice if the court
found that he committed or suborned perjury. USSG § 3C1.1 & comment. (n.4(B)).

       Beyond that, pursuing the objection could have undermined counsel’s plea for
a downward variance from the guideline range. Counsel argued that the guidelines
overstated the seriousness of Haney’s offense because, among other things, “if he’s
on a file sharing, then he’s hooked for distribution.” R. Doc. 64, at 34. The
government went so far as to endorse a variance, and the district court gave the
prosecutor’s position “considerable weight” in varying downward by the equivalent
of three levels from an advisory term of 235 months to a term of 180 months. But if
Haney had backtracked on his plea colloquy and denied at sentencing that he
knowingly engaged in distribution, then there is no guarantee that the government
would have been so charitable. Without the prosecutor’s concurrence, the district
court may not have been convinced to deviate from the recommendation of the
Sentencing Commission. So even if Haney had prevailed on avoiding a two-level
increase under § 2G2.2(b)(3)(F), there was reason to doubt whether he would have
received a downward variance at the same time. With no two-level increase but no
variance, Haney would have been sentenced within a guideline range of 188 to 235
months’ imprisonment—above the 180-month term that he actually received at
sentencing.

      In view of the risks involved in pursuing the alternative course, and the limited
potential reward, there is ample reason to conclude that counsel’s decision to
withdraw the objection to the two-level distribution enhancement was objectively
reasonable. Because the reasonableness of counsel’s performance is an objective

                                          -7-
question, it was permissible for the district court to resolve the motion without
testimony from counsel about his subjective reasoning on this point. Allen, 829 F.3d
at 968.

      The judgment of the district court is affirmed.
                     ______________________________




                                        -8-
