In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2010
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FREDERICK C. REZIN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
Nos. 01-C-683-S, 00-CR-83-S—John C. Shabaz, Judge.
____________
ARGUED JANUARY 21, 2003—DECIDED MARCH 4, 2003
____________
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 inter-
pretation that authorized the sentence. The motion was
denied, precipitating this appeal.
2 No. 02-2010
A claim of ineffective assistance of counsel, we have said
many times, is indeed better made in postconviction pro-
ceedings than in a direct appeal from the sentence, to en-
able 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 final-
ity of criminal judgments and thus in minimizing col-
lateral attacks upon them requires this result, unless the
defendant has a good reason, such as ineffective assis-
tance 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 dis-
agree, 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 Su-
preme Court has now granted certiorari to resolve the
intercircuit conflict. Massaro v. United States, 123 S. Ct. 31
(2002). No matter; forfeiture can be waived, and was here,
No. 02-2010 3
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 mi-
nor. 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 Wiscon-
sin 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 author-
ize additional punishment for an offense unless the vic-
tim’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 professional stan-
dards for the representation of a criminal defendant by
overlooking an argument for his client that was unlikely
to prevail. Of course, if it does not prevail, then the law-
yer is not guilty of ineffective assistance, because ineffec-
tive assistance requires both that the lawyer fail to come
up to minimum professional standards for the representa-
tion of criminal defendants and that the failure be prej-
udicial, that is, likely to have affected the outcome of
his client’s case. But suppose the argument that the law-
yer failed to make, though a long shot, would have suc-
ceeded; shall his client be denied relief under section
2255 (or its counterpart for state prisoners) because it was
a long shot? In other words, is there never a duty to
make weak arguments?
4 No. 02-2010
A defendant’s lawyer has, it is certainly true, no duty
to make a frivolous argument; and there is a tactical rea-
son not to make weak arguments (and a fortiori frivolous
ones, Evans v. Meyer, 742 F.2d 371, 374 (7th Cir. 1984),
which anyway are futile): they may distract the court
from the strong arguments and as a result make it less
likely to rule in the defendant’s favor. But if as in this
case there is only one argument that could be made on
the defendant’s behalf, and it is not frivolous, the law-
yer may have a professional obligation to make it. Keys
v. Duckworth, 761 F.2d 390, 392 (7th Cir. 1985) (per curiam);
cf. Fortenberry v. Haley, 297 F.3d 1213, 1226-27 (11th Cir.
2002) (per curiam); Tejeda v. Dubois, 142 F.3d 18, 25 (1st
Cir. 1998). It is not suggested that Rezin’s lawyer had a
tactical reason not to make the argument that we are
about to examine; he could not have, since he had no
other basis for knocking five years off his client’s sen-
tence. “The spectrum of counsel’s legitimate tactical choices
does not include abandoning a client’s only defense.” United
States ex rel. Barnard v. Lane, 819 F.2d 798, 805 (7th Cir. 1987).
There was nothing to lose and something to gain,
though only in a probabilistic sense, from making the
argument.
If, however, the argument that the lawyer fails to make
is a subtle or esoteric one—something most lawyers
would not have thought of, however conscientious they
might be—then the lawyer cannot be said to have fallen
below the minimum level of professional competence by
failing to make it, and so the claim of ineffective assis-
tance would fail even if the argument turned out to be
a valid ground for a new trial. Criminal defendants have
a right to a competent lawyer, but not to Clarence Dar-
row. See, e.g., Thomas v. Gilmore, 144 F.3d 513, 515 (7th
Cir. 1998); Wade v. Franzen, 678 F.2d 56, 58 (7th Cir. 1982).
A lawyer is not to be deemed incompetent merely for
No. 02-2010 5
lacking the imagination “to anticipate arguments or ap-
pellate issues that only blossomed after defendant’s trial
and appeal have concluded,” Sherrill v. Hargett, 184 F.3d
1172, 1175 (10th Cir. 1999), though the clever lawyer would
have spotted the bud.
Some cases, such as Kurina v. Thieret, supra, 853 F.2d
at 1417, set a very low threshold indeed, by asking of the
lawyer only an awareness of “obvious” issues. We doubt
whether this was intended literally, however. In Wade
v. Franzen, supra, 678 F.2d at 58, we said that “representa-
tion permeated by serious and inexplicable errors falls
below minimum standards.” Clearly so—and perhaps a
serious error need not actually be inexplicable to convict
the lawyer of falling below the modest level of compe-
tence that the Constitution has been interpreted to re-
quire of a criminal defendant’s lawyer. Cf. United States
v. Williamson, 183 F.3d 458, 463 and n. 7 (5th Cir. 1999).
It is at least arguable in this case that a competent law-
yer, lacking any other possible ground for cutting five
years off his client’s sentence, would have realized that
section 2252(b)(2) might limit “abusive sexual conduct
involving a minor” to offenses of which the victim’s
being a minor was an element, that is, something the
prosecution would have to prove beyond a reasonable
doubt in order to convict; third-degree sexual assault in
Wisconsin is not such an offense. Such arguments have
occasionally succeeded. The leading case is Taylor v.
United States, 495 U.S. 575, 601-02 (1990), and recently the
Third Circuit construed a provision materially indistin-
guishable from that at issue here, 18 U.S.C. § 2251(d),
which authorizes enhanced punishment if the defendant
has a prior conviction that relates “to the sexual exploita-
tion of children,” to require that sexual exploitation of
children be an element of the offense for which he was
6 No. 02-2010
convicted. United States v. Galo, 239 F.3d 572, 576-84 (3d Cir.
2001). Galo was decided after Rezin was sentenced, but
if Rezin’s lawyer had been alert he would have made
the same argument in this case that Galo’s lawyer made
to the Third Circuit. This would not have involved pre-
dicting a change in the law; there was and is no case
directly contrary to Galo (an important qualification, how-
ever, as we’re about to see), or indeed any case interpreting
the meaning of “abusive sexual conduct involving a
minor” in section 2252(b)(2).
Even if the failure of the defendant’s trial lawyer to
make a Galo-type argument was incompetent, no remand
is necessary, because, with all due respect to our col-
leagues in the Third Circuit, we think that the argument,
though not frivolous, is unsound. The operative language
in section 2252(b)(2) is “a prior conviction under this
chapter, chapter 109A, chapter 117, or under the laws of
any State relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or
ward, or the production, possession, receipt, mailing,
sale, distribution, shipment, or transportation of child
pornography.” “[T]his chapter” of the federal criminal code,
Chapter 110, the chapter in which section 2252 itself ap-
pears, is indeed about the sexual exploitation of children.
But Chapter 109A, “sexual abuse,” 18 U.S.C. §§ 2241 et seq.,
and Chapter 117, “transportation for illegal sexual ac-
tivity and related crimes,” 18 U.S.C. §§ 2421 et seq., are
not limited to crimes against children.
The reference in section 2252(b)(2) to state laws against
“aggravated sexual abuse” and “sexual abuse” is less clear
on this point because, for obvious reasons of economy in
statutory drafting, Congress did not try to cite every state
law that it wished to make a basis for an enhanced sentence
for violating section 2252(b)(2). However, although rela-
No. 02-2010 7
tively few states use the term to define an offense, in two
that do, Illinois and New York, “sexual abuse” applies to
prohibited conduct against both adults and children. 720
ILCS 5/12-15, 5/12-16; N.Y. Penal Law § 130.55-.70. Some
states use the term “sexual abuse of minors,” but this
just confirms that the term “sexual abuse” requires a
modifier to limit it to minors. The defendant argues
that “involving a minor” in section 2252(b)(2) qualifies
not just “abusive sexual conduct” but also “aggravated
sexual abuse” and “sexual abuse.” (He does not argue,
however, that it also qualifies the enumerated federal
offenses.) The punctuation is against him, though we do
not regard that as determinative, since American stan-
dards of punctuation are notably lax. More important,
it would have been strange had Congress on the one
hand authorized heavier punishment for offenders who
had a prior federal conviction for a sexual crime whether
or not it involved a minor, and on the other hand insisted
that if the prior conviction had been for a state offense,
even one identical to one of the enumerated federal of-
fenses, the victim had to be a minor. It would be stran-
ger still if someone whose prior conviction did involve
abusive sexual conduct with a minor escaped the heavier
punishment because the age of the victim was not an ele-
ment of the particular offense for which he was convicted.
There is no mention of elements in section 2252(b)(2), and
“prior conviction . . . relating to . . . abusive sexual con-
duct involving a minor” (emphasis added) is not nat-
urally read to require that the age of the victim of the
abusive sexual conduct be a statutory element.
From the standpoint of rational penal policy, moreover,
what is important is the conduct that gave rise to the
prior conviction, not the elements of the offense under-
lying that conviction. Congress wanted to punish viola-
tions of section 2252 more heavily if the offender had
8 No. 02-2010
been convicted of certain crimes previously, including
abusive sexual conduct involving a minor, which is an
exact description of Rezin’s prior crime. The only reason
for not treating the crime as what it was would be if we
couldn’t be sure what it was without an evidentiary hear-
ing. There are compelling objections to turning a sentenc-
ing hearing into a factual inquiry concerning the circum-
stances of a crime committed many years earlier. Cases
such as our United States v. Shannon, 110 F.3d 382, 384-85
(7th Cir. 1997) (en banc), which hold that if an evidentiary
hearing is necessary to determine a fact pertaining to
enhanced punishment (there whether the prior conviction
was for forcible rape, here whether the prior conviction
was for assault on a minor), the fact cannot be used in
determining the sentence for the defendant’s current
crime, in effect graft an additional element (!) onto stat-
utes like section 2252(b)(2) that provide for enhanced
punishment on the basis of a prior conviction. Other cir-
cuits use a similar though somewhat less restrictive ap-
proach. See, e.g., United States v. Franklin, 235 F.3d 1165,
1169-70 and n. 5 (9th Cir. 2000); United States v. Damon,
127 F.3d 139, 147-48 (1st Cir. 1997); Emile v. INS, 244 F.3d
183, 185, 187-89 (1st Cir. 2001).
It could be argued that the language “relating to . . . abu-
sive sexual conduct involving a minor” evinces a stat-
utory purpose of rejecting the graft in favor of an interpre-
tation that would catch any sex criminal who in fact had
abused a child. This would ice the case against Rezin.
But the government does not make the argument, so we
set it to one side and assume that the sentencing court is
to look first to the charging document (the indictment
or information) and to the judgment, read in light of the
statute under which the defendant was convicted. The
facts established by these documents may not be contra-
dicted by peeking behind them to try to discover what really
No. 02-2010 9
happened. United States v. Hicks, 122 F.3d 12, 12-13 (7th
Cir. 1997). But, as these and other cases make clear, if
those documents don’t either determine or deny some
fact that is relevant to enhancement and that fact is uncon-
tested or uncontestable and thus does not require an evi-
dentiary hearing to establish, the court can use it in decid-
ing on the defendant’s sentence for the current crime.
See, e.g., United States v. Alvarez-Martinez, 286 F.3d 470,
475-76 (7th Cir. 2002); Lara-Ruiz v. INS, 241 F.3d 934, 941
(7th Cir. 2001); Xiong v. INS, 173 F.3d 601, 605-07 (7th Cir.
1999). Galo does not cite Shannon or any of the cases that
follow it or explain why Congress might have wanted
us to close our eyes to the age of the defendant’s vic-
tims; it certainly didn’t say it wanted us to.
One loose end remains to be tied up. We have as-
sumed thus far that the only pigeonhole in which to
place Rezin’s conviction for third-degree sexual assault
is “abusive sexual conduct involving a minor.” But actually
this is not clear. It could be “sexual abuse” or even, con-
sidering the age of the victims, “aggravated sexual
abuse.” There are two ways to interpret the part of section
2252(b)(2) that reads “the laws of any State relating to
aggravated sexual abuse, sexual abuse, or abusive sex-
ual conduct involving a minor.” One is that it includes
offenses denominated by a state as sexual abuse or aggra-
vated sexual abuse, plus other sex offenses if and only
if they involve a minor. Another is that as in the Taylor
case the statute assigns to the courts the task of defining
a “generic” offense of sexual abuse or aggravated sexual
abuse, that is, a template for determining which state
offenses shall be a basis for enhancement (“generic” rather
than specific because it would not necessarily track the law
of any particular state). The latter, the generic approach,
seems more apt here, as in Taylor, if only because most
states do not use the terminology of sexual abuse, and why
10 No. 02-2010
would Congress have wanted to disqualify convictions
for serious sex crimes in those states from use in enhanc-
ing a sentence? In any event, however the generic-specific
issue is resolved, Rezin’s prior offense fell into the resid-
ual category of abusive sexual conduct involving a minor.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-4-03