UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Anthony Rimas
v. Civil No. 24-cv-391-LM-AJ Opinion No. 2024 DNH 104 P United States of America
ORDER
The petitioner, Anthony Rimas, moves for resentencing pursuant to 28 U.S.C.
§ 2255, contending that he was denied effective assistance of counsel when his
attorney failed to raise a particular argument that a cross reference within the
offense guideline pertaining to Rimas’s crime of conviction did not apply. Rimas’s
petition is presently before the court for an initial review pursuant to Rule 4 of the
Rules Governing Section 2255 Proceedings for the United States District Courts
(“2255 Rules”). For the following reasons, Rimas’s petition must be dismissed
because it is plain he is not entitled to relief.
STANDARD OF REVIEW
A prisoner serving a sentence imposed by a federal court may move the
sentencing court to vacate, set aside, or correct the sentence “upon the ground that
the sentence was imposed in violation of the Constitution or laws of the United
States, . . . or is otherwise subject to collateral attack.” 28 U.S.C. § 2255; accord
Kenney v. United States, Civ. No. 20-cv-00207-LM, 2020 WL 869791, at *1 (D.N.H.
Feb. 21, 2020). Upon filing, the court examines the petition to determine whether “it
plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the movant is not entitled to relief.” 2255 Rules, Rule 4(b). If it is
plain that the petitioner is not entitled to relief, the petition must be dismissed. Id.
Otherwise, the court generally directs the government to respond. Id.
BACKGROUND 1 0F
On July 20, 2021, Rimas was charged in an information with one count of
receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and (b)(1).
That same day, Rimas and the government filed a plea agreement. The plea
agreement contained a stipulated version of the facts of the offense. Rimas agreed
that, if the case proceeded to trial, the government would introduce evidence of the
stipulated facts, which would prove the elements of the offense beyond a reasonable
doubt.
Rimas stipulated that, in October 2020, he began communicating with a
person whom he believed to be a 14-year-old girl using a messaging application. In
reality, Rimas was communicating with an undercover law enforcement officer
purporting to be a minor. Rimas communicated with the officer from October 15,
2020, through at least February 3, 2021. On October 30, 2020, he asked whether
she would “stroke and suck” his penis when they met, and said “I bet you will you
are just nervous.” On February 3, 2021, he asked the undercover to send him a
picture of her naked body with her breasts and genitals exposed, and gave her
instructions for how to do so.
The following facts are derived from the record of Rimas’s criminal 1
proceeding. See United States v. Rimas, Crim. No. 21-cr-121-LM-1 (D.N.H. July 20, 2021).
2 After conducting further investigation (which yielded evidence that Rimas
asked an additional undercover officer purporting to be a 12-year-old to have sex
with him), officers obtained and executed a search warrant on Rimas’s home.
During that search, officers recovered a laptop containing over fifty files of child
pornography, including files involving infants and toddlers, and a miniature storage
device containing an additional video file of child pornography. Officers also
recovered Rimas’s cell phone, which contained at least three video files of child
pornography. Data on the phone showed that Rimas received one file on March 2,
2021, and the other two on March 9, 2021. Rimas’s phone also contained all of his
communications with the undercover officers.
On September 2, 2021, Rimas waived indictment and pled guilty to the single
count of receipt of child pornography alleged in the information. Following the
change-of-plea hearing, the parties disputed the application of a cross reference to
U.S.S.G. § 2G2.1 within § 2G2.2—the latter being the offense guideline applicable to
§ 2252(a)(2)(B). The cross reference provides that, “[i]f the offense involved causing,
transporting, permitting, or offering or seeking by notice or advertisement, a minor
to engage in sexually explicit conduct for the purpose of producing a visual depiction
of such conduct,” the court should calculate the defendant’s offense level using
§ 2G2.1 rather than § 2G2.2 if doing so would result in a greater offense level.
U.S.S.G. § 2G2.2(c)(1). Probation and the government took the position that the
cross reference applied in light of Rimas’s February 2021 conversation with the
undercover officer because that conversation involved Rimas asking a person whom
3 he believed to be a minor to send him sexually explicit images. Defense counsel
primarily argued in opposition that Rimas only asked for such a photograph after
being prompted by the undercover. The court overruled defense counsel’s objection
and applied the cross reference. Defense counsel did not meaningfully advance
another argument that the cross reference was inapplicable.
After resolving the remainder of defense counsel’s contentions regarding the
appropriate guidelines sentencing range, the court determined that Rimas’s total
offense level was 31 and his criminal history category was I, which yielded an
advisory sentencing guidelines range of 108 to 135 months. The government argued
for a low-end guidelines sentence of 108 months, and defense counsel argued for the
mandatory minimum sentence of 60 months. The court ultimately sentenced Rimas
to 108 months.
DISCUSSION
To prevail on an ineffective assistance of counsel claim, a habeas petitioner
must make a two-part showing. Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, he must show “that counsel’s performance was deficient.” Id. To satisfy this
“performance” prong, the petitioner must demonstrate that defense counsel’s
performance “fell below an objective standard of reasonableness.” Id. at 688.
“Judicial scrutiny of counsel’s performance must be highly deferential,” and courts
“indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. Second, the petitioner must show
that defense counsel’s “deficient performance prejudiced the defense.” Id. at 687. To
4 satisfy this “prejudice” prong, the petitioner must show a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Rimas, who is proceeding pro se, argues that trial counsel was
constitutionally ineffective because he failed to argue for application of the
sentencing guideline applicable to attempt, U.S.S.G. § 2X1.1. To the extent Rimas
intends to argue that defense counsel rendered deficient performance by failing to
argue that § 2X1.1 was the offense guideline applicable to his crime of conviction, he
is incorrect.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Anthony Rimas
v. Civil No. 24-cv-391-LM-AJ Opinion No. 2024 DNH 104 P United States of America
ORDER
The petitioner, Anthony Rimas, moves for resentencing pursuant to 28 U.S.C.
§ 2255, contending that he was denied effective assistance of counsel when his
attorney failed to raise a particular argument that a cross reference within the
offense guideline pertaining to Rimas’s crime of conviction did not apply. Rimas’s
petition is presently before the court for an initial review pursuant to Rule 4 of the
Rules Governing Section 2255 Proceedings for the United States District Courts
(“2255 Rules”). For the following reasons, Rimas’s petition must be dismissed
because it is plain he is not entitled to relief.
STANDARD OF REVIEW
A prisoner serving a sentence imposed by a federal court may move the
sentencing court to vacate, set aside, or correct the sentence “upon the ground that
the sentence was imposed in violation of the Constitution or laws of the United
States, . . . or is otherwise subject to collateral attack.” 28 U.S.C. § 2255; accord
Kenney v. United States, Civ. No. 20-cv-00207-LM, 2020 WL 869791, at *1 (D.N.H.
Feb. 21, 2020). Upon filing, the court examines the petition to determine whether “it
plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the movant is not entitled to relief.” 2255 Rules, Rule 4(b). If it is
plain that the petitioner is not entitled to relief, the petition must be dismissed. Id.
Otherwise, the court generally directs the government to respond. Id.
BACKGROUND 1 0F
On July 20, 2021, Rimas was charged in an information with one count of
receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and (b)(1).
That same day, Rimas and the government filed a plea agreement. The plea
agreement contained a stipulated version of the facts of the offense. Rimas agreed
that, if the case proceeded to trial, the government would introduce evidence of the
stipulated facts, which would prove the elements of the offense beyond a reasonable
doubt.
Rimas stipulated that, in October 2020, he began communicating with a
person whom he believed to be a 14-year-old girl using a messaging application. In
reality, Rimas was communicating with an undercover law enforcement officer
purporting to be a minor. Rimas communicated with the officer from October 15,
2020, through at least February 3, 2021. On October 30, 2020, he asked whether
she would “stroke and suck” his penis when they met, and said “I bet you will you
are just nervous.” On February 3, 2021, he asked the undercover to send him a
picture of her naked body with her breasts and genitals exposed, and gave her
instructions for how to do so.
The following facts are derived from the record of Rimas’s criminal 1
proceeding. See United States v. Rimas, Crim. No. 21-cr-121-LM-1 (D.N.H. July 20, 2021).
2 After conducting further investigation (which yielded evidence that Rimas
asked an additional undercover officer purporting to be a 12-year-old to have sex
with him), officers obtained and executed a search warrant on Rimas’s home.
During that search, officers recovered a laptop containing over fifty files of child
pornography, including files involving infants and toddlers, and a miniature storage
device containing an additional video file of child pornography. Officers also
recovered Rimas’s cell phone, which contained at least three video files of child
pornography. Data on the phone showed that Rimas received one file on March 2,
2021, and the other two on March 9, 2021. Rimas’s phone also contained all of his
communications with the undercover officers.
On September 2, 2021, Rimas waived indictment and pled guilty to the single
count of receipt of child pornography alleged in the information. Following the
change-of-plea hearing, the parties disputed the application of a cross reference to
U.S.S.G. § 2G2.1 within § 2G2.2—the latter being the offense guideline applicable to
§ 2252(a)(2)(B). The cross reference provides that, “[i]f the offense involved causing,
transporting, permitting, or offering or seeking by notice or advertisement, a minor
to engage in sexually explicit conduct for the purpose of producing a visual depiction
of such conduct,” the court should calculate the defendant’s offense level using
§ 2G2.1 rather than § 2G2.2 if doing so would result in a greater offense level.
U.S.S.G. § 2G2.2(c)(1). Probation and the government took the position that the
cross reference applied in light of Rimas’s February 2021 conversation with the
undercover officer because that conversation involved Rimas asking a person whom
3 he believed to be a minor to send him sexually explicit images. Defense counsel
primarily argued in opposition that Rimas only asked for such a photograph after
being prompted by the undercover. The court overruled defense counsel’s objection
and applied the cross reference. Defense counsel did not meaningfully advance
another argument that the cross reference was inapplicable.
After resolving the remainder of defense counsel’s contentions regarding the
appropriate guidelines sentencing range, the court determined that Rimas’s total
offense level was 31 and his criminal history category was I, which yielded an
advisory sentencing guidelines range of 108 to 135 months. The government argued
for a low-end guidelines sentence of 108 months, and defense counsel argued for the
mandatory minimum sentence of 60 months. The court ultimately sentenced Rimas
to 108 months.
DISCUSSION
To prevail on an ineffective assistance of counsel claim, a habeas petitioner
must make a two-part showing. Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, he must show “that counsel’s performance was deficient.” Id. To satisfy this
“performance” prong, the petitioner must demonstrate that defense counsel’s
performance “fell below an objective standard of reasonableness.” Id. at 688.
“Judicial scrutiny of counsel’s performance must be highly deferential,” and courts
“indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. Second, the petitioner must show
that defense counsel’s “deficient performance prejudiced the defense.” Id. at 687. To
4 satisfy this “prejudice” prong, the petitioner must show a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Rimas, who is proceeding pro se, argues that trial counsel was
constitutionally ineffective because he failed to argue for application of the
sentencing guideline applicable to attempt, U.S.S.G. § 2X1.1. To the extent Rimas
intends to argue that defense counsel rendered deficient performance by failing to
argue that § 2X1.1 was the offense guideline applicable to his crime of conviction, he
is incorrect. The first step in determining the applicable sentencing guidelines
range is to determine “the offense guideline section from Chapter Two (Offense
Conduct) applicable to the offense of conviction.” U.S.S.G. § 1B1.1(a)(1); see also
§ 1B1.2(a) (instructing the court to first “[d]etermine the offense guideline section in
Chapter Two (Offense Conduct) applicable to the offense of conviction (i.e., the
offense conduct charged in the count of the indictment or information of which the
defendant was convicted)”). Here, Rimas’s offense of conviction was receipt of child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). The offense guideline
applicable to a violation of 18 U.S.C. § 2252A(a) is § 2G2.2. See U.S.S.G. App’x A
(Statutory Index). Section 2X1.1 governs certain inchoate offenses such as attempt,
solicitation, and conspiracy. See § 2X1.1. Rimas’s offense of conviction was a
substantive offense, not an inchoate offense. Thus, to the extent Rimas argues trial
5 counsel was constitutionally deficient in failing to argue that § 2X1.1 governed his
offense of conviction, it is plain he is not entitled to relief.
Rimas fares no better to the extent he argues that counsel was ineffective in
failing to argue that the cross reference to § 2G2.2 within § 2G2.1 does not apply
when the defendant is unsuccessful in persuading a minor to produce sexually
explicit images. Section 2X1.1 makes clear that, when a defendant’s offense “is
expressly covered by another offense guideline section,” § 2X1.1 does not apply.
§ 2X1.1(c)(1). As noted, the cross reference in § 2G2.2 provides that, “[i]f the offense
involved causing, transporting, permitting, or offering or seeking by notice or
advertisement, a minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct,” the court should determine the
defendant’s offense level using § 2G2.1 rather than § 2G2.2 if doing so would result
in a greater offense level. § 2G2.2(c)(1). The Application Notes state that this cross
reference “is to be construed broadly and includes all instances where the offense
involved . . . persuading, inducing, enticing, [or] coercing . . . a minor to engage in
sexually explicit conduct for the purpose of producing any visual depiction of such
conduct.” § 2G2.2, Application Note 7.
Here, the court applied the cross reference because the undisputed evidence
showed that, on February 3, 2021, Rimas asked a person whom he believed to be a
14-year-old girl to send him a picture of her naked body with her breasts and
genitals exposed, and gave her instructions for how to do so. Therefore, Rimas
persuaded, enticed, or coerced a minor to engage in sexually explicit conduct for the
6 purpose of producing a visual depiction of that conduct, and the cross reference
applies. See U.S.S.G. § 2G2.1(c)(1); Application Note 7; see also Application Note 1
(defining “minor” to include an undercover law enforcement officer representing to
be a minor). That Rimas was unsuccessful in persuading the purported minor to
provide him with sexually explicit images does not alter this conclusion. Because
the cross reference applies, trial counsel was not constitutionally deficient in failing
to argue that the cross reference does not extend to Rimas’s undisputed conduct.
Because it is plain from Rimas’s petition and the record of his criminal
proceeding that he is not entitled to relief, his petition must be dismissed. 2255
Rules, Rule 4(b).
CONCLUSION
Rimas’s petition (doc. no. 1) is dismissed. The clerk is directed to enter
judgment and close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
December 12, 2024
cc: Anthony Rimas, pro se