[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

____________________

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2 Opinion of the Court 22-12117

Before ROSENBAUM, NEWSOM, and ABUDU, Circuit Judges.

NEWSOM, Circuit Judge:

Federal prisoner Sarah Ritchie appeals the district court’s denial of her motion to vacate, set aside, or correct her sentence pursuant 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 ineffective 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 acquaintance’s six-year-old daughter. Ritchie further informed the police

that she had read stories that Justin had sent her about adults having 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. 

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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 looking 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 another 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 Justin 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 violation 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, 

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the government agreed to dismiss Count One and request a downward 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 conduct, (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 elements of a § 2251(a)/(e) offense, that her plea was knowing, voluntary, and intelligent, and that she had competent counsel with 

whom she was satisfied. On the basis of the magistrate judge’s findings, the district court accepted Ritchie’s guilty plea. After taking

testimony from Ritchie and an FBI agent, the district court dismissed Count One pursuant to the plea agreement and, on Count 

Two, sentenced Ritchie to 180 months’ imprisonment—the statutory 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) conviction, telling her that she had no defense to her aiding-and-abetting charge, and failing to investigate whether she had any such 

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defense. In particular, Ritchie asserted that her counsel should 

have advised her that the videos underlying her conviction depicted 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 instead have pursued other options, including going to trial. The district court concluded that Ritchie’s lawyer’s failure to advise her on 

a “novel and unsettled point of law”—namely, whether her conduct 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 request 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 imposed 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 presents a mixed question of law and fact that we review de novo. 

Gordon v. United States, 518 F.3d 1291, 1296 (11th Cir. 2008).

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As interpreted by the Supreme Court, the Sixth Amendment 

gives criminal defendants the right to effective assistance of counsel. 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 performance was deficient and (2) that the attorney’s deficient performance 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 functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 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 

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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 cannot 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 deficient 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 attorney capable of foreseeing the future development of constitutional law.”). 

B

Here, Ritchie argues that her lawyer was constitutionally ineffective 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 producing any visual depiction of such conduct . . . shall be 

punished as provided under subsection (e) . . . .

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“Sexually explicit conduct” includes sexual intercourse, masturbation, 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 activity 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 activity 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

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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 decision, of any court, that had interpreted § 2251(a) the way Ritchie 

advocates and the Seventh Circuit later read it. Significantly, however, before Ritchie entered her plea, both the Third and Eighth 

Circuits had held that the term “use[]” in § 2251(a) covers the circumstance 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—someday—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

coverthose circumstances in which the child is unaware of the sexually explicit

conduct. United States v. Dawson, 64 F.4th 1227 (11th Cir. 2023).

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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 certainly can’t “establish that no competent counsel would have taken 

the action that [her] counsel” took in advising her as he did. Chandler, 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 government 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 ultimately 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 entitled to no relief.” 28 U.S.C. § 2255(b). Because Ritchie’sineffective-assistance

claim “conclusively” fails as a matter of law, the district court was within its 

discretion in declining to hold a hearing. 

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