Sarah Ritchie v. United States

112 F.4th 1344

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 21, 2024
• Docket: 22-12117
• Status: Published

Opinion

USCA11 Case: 22-12117 Document: 50-1 Date Filed: 08/21/2024 Page: 1 of 10

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-12117 ____________________

SARAH RITCHIE, Petitioner-Appellant, versus UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket Nos. 6:20-cv-01830-RBD-LHP, 6:19-cr-00092-RBD-LHP-1 ____________________ USCA11 Case: 22-12117 Document: 50-1 Date Filed: 08/21/2024 Page: 2 of 10

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Before ROSENBAUM, NEWSOM, and ABUDU, Circuit Judges. NEWSOM, Circuit Judge: Federal prisoner Sarah Ritchie appeals the district court’s de- nial of her motion to vacate, set aside, or correct her sentence pur- suant to 28 U.S.C. § 2255. Ritchie, who pleaded guilty to aiding and abetting the production of child pornography in violation of 18 U.S.C. § 2251(a) and (e), argues that her trial lawyer rendered inef- fective assistance of counsel when he failed to advise her that, should the law develop in a particular way, the facts of her case might not support a conviction. After careful review of the parties’ arguments, and with the benefit of oral argument, we hold that Ritchie’s lawyer was not constitutionally ineffective. Accordingly, we will affirm the district court’s denial of Ritchie’s motion. I In March 2019, Ritchie notified the police that one of her three daughters had told her that her husband, Justin Ritchie, had recorded himself molesting the girl. During interviews with police, Ritchie revealed that a year earlier, Justin had told her that he viewed child pornography. She also admitted that Justin had sent her images of naked children, including images of an acquaint- ance’s six-year-old daughter. Ritchie further informed the police that she had read stories that Justin had sent her about adults hav- ing sex with children and that she had listened to a recording of Justin and his mistress fantasizing about a sexual encounter with one of the Ritchies’ daughters. USCA11 Case: 22-12117 Document: 50-1 Date Filed: 08/21/2024 Page: 3 of 10

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Authorities searched Justin’s cellphone and discovered that he had sent Ritchie thirteen images of child pornography, including several of children she recognized. In a text exchange, Ritchie had told Justin that the photos didn’t bother her and that she liked look- ing at them with him. More specifically, in the texts, Justin had admitted to Ritchie that he was sexually aroused by images of her breastfeeding their infant daughter and asked her to send him some. Particularly relevant here, videos found on Ritchie’s phone depicted her and Justin having sex while their daughter was lying on Ritchie with the child’s mouth on or near Ritchie’s breast. One video showed Ritchie masturbating and Justin performing oral sex on her while Ritchie apparently breastfed the girl. In the video, Justin periodically focused the camera on their daughter. In an- other text from Justin to Ritchie, he had said that he found a “naughty” video of her and attached a picture of Ritchie lying on a bed masturbating with their daughter on her stomach facing Ritchie’s breast. Ritchie had agreed that it was “naughty,” and Jus- tin replied that it had aroused him and sent her a picture of his erect penis. Ritchie was indicted on two counts: (1) receiving images of child pornography, in violation of 28 U.S.C. § 2252A; and (2) aiding and abetting the “use[]” of a minor “to engage in” or “assist any other person to engage in” any “sexually explicit conduct for the purpose of producing a visual depiction of such conduct,” in viola- tion of 18 U.S.C. § 2251(a) and (e). With the advice of counsel, Ritchie entered a negotiated guilty plea on Count Two. In return, USCA11 Case: 22-12117 Document: 50-1 Date Filed: 08/21/2024 Page: 4 of 10

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the government agreed to dismiss Count One and request a down- ward departure from Ritchie’s sentencing-guidelines range. At her change-of-plea hearing, a magistrate judge reviewed with Ritchie her indictment, the charge to which she was pleading guilty, the elements of her offense, and her understanding of the plea agreement. During the hearing, Ritchie admitted (1) that she and Justin had “use[d]” their daughter to engage in sexually explicit conduct for the purpose of producing a visual depiction of the con- duct, (2) that her daughter was under 18 years of age, and (3) that Justin had used his phone to record the conduct. The magistrate judge found that the facts Ritchie admitted during the hearing and the factual basis of her plea agreement established the essential el- ements of a § 2251(a)/(e) offense, that her plea was knowing, vol- untary, and intelligent, and that she had competent counsel with whom she was satisfied. On the basis of the magistrate judge’s find- ings, the district court accepted Ritchie’s guilty plea. After taking testimony from Ritchie and an FBI agent, the district court dis- missed Count One pursuant to the plea agreement and, on Count Two, sentenced Ritchie to 180 months’ imprisonment—the statu- tory minimum—followed by 10 years of supervised release. In 2020, Ritchie timely filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct her sentence. Ritchie alleged that her trial counsel had rendered ineffective assistance by failing to advise her that the facts of her case might not support a § 2251(a)/(e) con- viction, telling her that she had no defense to her aiding-and-abet- ting charge, and failing to investigate whether she had any such USCA11 Case: 22-12117 Document: 50-1 Date Filed: 08/21/2024 Page: 5 of 10

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defense. In particular, Ritchie asserted that her counsel should have advised her that the videos underlying her conviction de- picted conduct outside § 2251(a)’s scope because they showed, at most, that she and Justin had engaged in sexually explicit behavior in the presence of a child, not that they had “use[d]” the child within the meaning of the statute. Ritchie said that, but for her lawyer’s failure, she wouldn’t have pleaded guilty and would in- stead have pursued other options, including going to trial. The dis- trict court concluded that Ritchie’s lawyer’s failure to advise her on a “novel and unsettled point of law”—namely, whether her con- duct amounted to prohibited “use[]” of a child—didn’t amount to deficient performance under Strickland v. Washington, 466 U.S. 668 (1984), and denied her motion. The court also denied Ritchie’s re- quest for an evidentiary hearing. This is Ritchie’s appeal. II A A prisoner in federal custody may move to vacate, set aside, or correct her sentence on “the ground that the sentence was im- posed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). When reviewing a district court’s denial of a motion to vacate, we review questions of law de novo and findings of fact for clear error. Thomas v. United States, 572 F.3d 1300, 1303 (11th Cir. 2009). An ineffective-assistance-of-counsel claim pre- sents a mixed question of law and fact that we review de novo. Gordon v. United States, 518 F.3d 1291, 1296 (11th Cir. 2008). USCA11 Case: 22-12117 Document: 50-1 Date Filed: 08/21/2024 Page: 6 of 10

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As interpreted by the Supreme Court, the Sixth Amendment gives criminal defendants the right to effective assistance of coun- sel. See U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 686 (1984). To establish a claim of ineffective assistance of counsel, a defendant must show (1) that her attorney’s perfor- mance was deficient and (2) that the attorney’s deficient perfor- mance prejudiced her defense. Strickland, 466 U.S. at 687. This two-part test extends to the plea process. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Courts needn’t address both prongs of the Strickland test if the defendant’s claim fails under one of them. Strickland, 466 U.S. at 697. Demonstrating deficient performance “requires showing that counsel made errors so serious that counsel was not function- ing as the ‘counsel’ guaranteed the defendant by the Sixth Amend- ment.” Id. at 687. We presume that an attorney acted reasonably, and the defendant bears the burden of proving that her attorney’s representation was “patently unreasonable.” Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983). To make that showing, the defendant “must establish that no competent counsel would have taken the action that [her] counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). Importantly here, we have held that the Sixth Amendment does not require a lawyer to “make arguments based on predictions of how the law may develop.” Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d 1325, 1334 (11th Cir. 2016) (citation omitted). Indeed, we have repeatedly emphasized that an attorney’s failure to anticipate a USCA11 Case: 22-12117 Document: 50-1 Date Filed: 08/21/2024 Page: 7 of 10

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change in the law doesn’t constitute ineffective assistance. See, e.g., Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (“We have held many times that reasonably effective representation can- not and does not include a requirement to make arguments based on predictions of how the law may develop.” (quotation marks omitted and alteration adopted)); Davis v. Singletary, 119 F.3d 1471, 1476 (11th Cir. 1997) (holding that “it was not professionally defi- cient for [counsel] to fail to anticipate that the law in Florida would be changed in the future”); Thompson v. Wainwright, 787 F.2d 1447, 1459 n.8 (11th Cir. 1986) (“[D]efendants are not entitled to an at- torney capable of foreseeing the future development of constitu- tional law.”). B Here, Ritchie argues that her lawyer was constitutionally in- effective because he failed to advise her that her conduct arguably fell outside the scope of the statute on which her guilty plea was predicated. Again, Ritchie pleaded guilty to violating 18 U.S.C. § 2251(a) and (e). In relevant part, § 2251(a) provides as follows: 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 . . . any sexually explicit conduct for the purpose of produc- ing any visual depiction of such conduct . . . shall be punished as provided under subsection (e) . . . . USCA11 Case: 22-12117 Document: 50-1 Date Filed: 08/21/2024 Page: 8 of 10

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“Sexually explicit conduct” includes sexual intercourse, masturba- tion, and “lascivious exhibition of the . . . genitals, or pubic area of any person.” 18 U.S.C. § 2256(2). Ritchie argues that the videos at issue don’t satisfy § 2251(a)’s “use[]” requirement because they don’t depict her daughter “either actively or passively engaged in sexually explicit conduct.” Br. of Appellant at 17. Rather, Ritchie insists that in the videos her daughter is fully clothed and unaware of the sexual ac- tivity that was occurring around her and in which only Ritchie and Justin were engaged. Ritchie contends that a visual depiction of breastfeeding is not itself sexually explicit and that the sexual activ- ity captured in the videos merely occurred in the presence of her daughter, which she insists at least arguably falls outside § 2251(a)’s scope. In support of her reading of the statute, Ritchie primarily relies on the Seventh Circuit’s decision in United States v. Howard, which held that in order to have been “use[d]” within the meaning of § 2251(a), a child must have actually engaged in sexually explicit conduct, see 968 F.3d 717 (7th Cir. 2020)—but which, importantly, was decided only after Ritchie entered her plea. Ritchie also cites a few other cases interpreting § 2251(a) that, while not on point, she says should have informed her lawyer that it was “arguable” that her conduct fell outside § 2251(a)’s ambit on the ground that “the videos depicted herself, but not [her daughter], engaged in sexually explicit conduct.” Br. of Appellant at 23–24. Ritchie thus maintains that her lawyer’s failure to advise her that the facts of her case might not support a conviction under § 2251(a) and (e) establishes USCA11 Case: 22-12117 Document: 50-1 Date Filed: 08/21/2024 Page: 9 of 10

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that he was constitutionally ineffective and that but for this error, she would have proceeded to trial. We are not persuaded. At the time of Ritchie’s plea, we hadn’t yet decided whether a minor’s passive presence in sexually explicit videos falls within the meaning of the term “use[]” in § 2251(a). 1 Nor, for that matter, are we aware of any on-point de- cision, of any court, that had interpreted § 2251(a) the way Ritchie advocates and the Seventh Circuit later read it. Significantly, how- ever, before Ritchie entered her plea, both the Third and Eighth Circuits had held that the term “use[]” in § 2251(a) covers the cir- cumstance in which a minor is not actively engaged but is present as the “object” of another’s sexually explicit conduct. See United States v. Finley, 726 F.3d 483, 495 (3rd Cir. 2013); United States v. Lohse, 797 F.3d 515, 522 (8th Cir. 2015). Given the state of the law as it existed when Ritchie entered her plea—two circuits against her, and no on-point decisions in her favor—we agree with the district court’s conclusion that “[t]hen existing-precedent . . . did not suggest that the facts of [Ritchie’s] case were legally insufficient to support a conviction under § 2251(a).” Doc. 9 at 12. And given that legal landscape, Ritchie’s counsel would have had to predict how this Court might—some- day—interpret the word “use” in that statute. But to repeat, “we have held many times that reasonably effective representation

1 As it turns out, since Ritchie’s plea agreement, we have held that “use[]” does

cover those circumstances in which the child is unaware of the sexually explicit conduct. United States v. Dawson, 64 F.4th 1227 (11th Cir. 2023). USCA11 Case: 22-12117 Document: 50-1 Date Filed: 08/21/2024 Page: 10 of 10

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cannot and does not include a requirement to make arguments based on predictions of how the law may develop.” Rambaran, 821 F.3d at 1334 (alterations adopted and citation omitted). Ritchie cer- tainly can’t “establish that no competent counsel would have taken the action that [her] counsel” took in advising her as he did. Chan- dler, 218 F.3d at 1315. In particular, given the unsettled state of the then-existing law, it was not unreasonable of Ritchie’s lawyer to advise her to take the government’s plea offer rather than proceed to trial. Had Ritchie not accepted the plea, in which the govern- ment dropped one charge against her and requested the statutory minimum at sentencing, she would have faced trial on two counts and 50 years in prison, rather than the 15 to which she was ulti- mately sentenced. For all these reasons, we conclude that Ritchie’s lawyer’s performance was not constitutionally deficient. Having so held, we needn’t reach Strickland’s prejudice inquiry. 2 AFFIRMED.

2 Ritchie also argues that the district court abused its discretion by failing to

hold an evidentiary hearing on her § 2255 motion. Federal law provides that a district court shall hold a hearing on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is en- titled to no relief.” 28 U.S.C. § 2255(b). Because Ritchie’s ineffective-assistance claim “conclusively” fails as a matter of law, the district court was within its discretion in declining to hold a hearing.