PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-6741

TIMOTHY ANDREW FUGIT,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Jerome B. Friedman, Senior District Judge.

(4:07-cr-00065-JBF-JEB-1; 4:09-cv-00135-JBF-DEM)

Argued: October 25, 2012

Decided: December 31, 2012

Before TRAXLER, Chief Judge, and WILKINSON and

AGEE, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Chief Judge Traxler and Judge Agee joined.

COUNSEL

ARGUED: Mary Beth Usher, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina,

for Appellant. Richard Daniel Cooke, OFFICE OF THE

UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: John J. Korzen, Director, Melissa

Evett, Third Year Law Student, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Appellate Advocacy Clinic,

Winston-Salem, North Carolina, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, Lisa R.

McKeel, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Newport News, Virginia,

for Appellee.

OPINION

WILKINSON, Circuit Judge:

Timothy Andrew Fugit moves for post-conviction relief in

connection with his guilty plea for enticing or attempting to

entice a minor to engage in illegal sexual activity, in violation

of 18 U.S.C. § 2422(b). The district court denied Fugit’s

motion under 28 U.S.C. § 2255 to vacate, set aside, or correct

his sentence. For the reasons that follow, we affirm the judgment.

I.

A grand jury in the Eastern District of Virginia returned a

two-count indictment against Fugit on May 24, 2007. Count

One charged him with distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1). Count Two

charged him with violating 18 U.S.C. § 2422(b), which provides, in pertinent part:

Whoever, using the mail or any facility or means of

interstate or foreign commerce, . . . knowingly persuades, induces, entices, or coerces any individual

who has not attained the age of 18 years, to engage

in prostitution or any sexual activity for which any

person can be charged with a criminal offense, or

2 UNITED STATES v. FUGIT
attempts to do so, shall be fined under this title and

imprisoned not less than 10 years or for life.

Count Two alone is at issue here. 

On the advice of counsel, Fugit pleaded guilty to both

counts on July 20, 2007. Although Fugit and the government

did not enter a formal plea agreement, the parties agreed to a

stipulated "Statement of Facts." This document described the

following foundations for the charges. 

On November 28, 2005, while claiming to be a young girl

named "Kimberly," Fugit held a conversation in an internet

chat room with an eleven-year-old girl, "Jane Doe #2." He

asked her questions regarding her breasts and genitals, her

underwear, slumber parties, and whether she had ever

appeared naked in front of men. He also obtained her telephone number. Pretending to be Kimberly’s father, Fugit telephoned Jane Doe #2 shortly thereafter and engaged her "in an

inappropriate sexual conversation." He asked whether she had

"seen a grown man naked," whether "she minded if he came

in to check on her while she was naked," whether "she would

mind seeing him naked," and whether she would "get naked

for him." Tracking the text of 18 U.S.C. § 2422(b), the Statement of Facts concluded its discussion of this incident by noting that Fugit "admits that he knowingly persuaded, induced,

enticed or coerced Jane Doe #2 to engage in a sexual activity,

to wit; Taking Indecent Liberties with Children, in violation

of § 18.2-370 of the Code of Virginia 1950, as amended, for

which he could be charged." 

Likewise, on December 12, 2005, once more posing as

"Kimberly," Fugit chatted online with a ten-year-old girl,

"Jane Doe #1," and obtained her telephone number. Approximately five minutes later, he telephoned her, pretended to be

Kimberly’s father, and engaged her "in an inappropriate sexual conversation." The Statement of Facts further described

how this latter incident precipitated an extensive police invesUNITED STATES v. FUGIT 3
tigation. During the execution of a search warrant at his residence, Fugit told police that he had "attempted to contact

children on the computer and telephone" and that an internet

account of his had been "bumped" several times because of

inappropriate contact with minors. Law enforcement discovered, "among other things" on Fugit’s computer, that he had

once distributed a child pornography image over e-mail.

Additionally, at his sentencing hearing, Fugit effectively

admitted the facts contained in the pre-sentence report (PSR)

prepared by the probation office. Specifically, he contested

only one allegation, which is not at issue here, and affirmed

that the remainder of the factual background was error-free.

The PSR revealed a great deal of information beyond that

contained in the Statement of Facts. 

Apparently referencing the incidents discussed above, the

PSR described how Fugit, in claiming to be Kimberly’s

father, asked Jane Doe #2 "to masturbate and take her shirt

off" and repeatedly demanded that she remove her pants. And

with regard to Jane Doe #1, among other statements, Fugit

"informed her of the rules he would impose" if she spent the

night at his house, "instructed her to call him ‘Daddy,’" and

stated that he "would perform a ‘finger test’ on [her] by rubbing her all over with his finger." Additionally, he said "that

he would allow her to touch his penis" and asked her "to take

her clothes off." 

Moreover, the PSR made clear that the incidents involving

Jane Does #1 and #2 were anything but isolated occurrences.

Investigation revealed that Fugit had participated in internet

chats with 129 individuals who appeared to be children,

twelve of whom police confirmed were indeed minors

between nine and twelve years old. During these dozen conversations, which occurred between March 2005 and January

2006, Fugit "always represented himself to be a child and

often asked inappropriate questions," including 

4 UNITED STATES v. FUGIT
the child’s breast size, whether or not the child had

pubic hair, whether or not the child slept in the nude,

whether or not the child engaged in masturbation,

what type of underwear the child wore, and whether

or not the child had been naked in front of a member

of the opposite sex.

As with Jane Does #1 and #2, Fugit often proceeded to

engage these children in telephone conversations involving

"inappropriate sexual comments."

Finally, the PSR disclosed that 289 still images and twentyfour videos of child pornography—at least some of which

were extremely graphic—were found on Fugit’s computers.

In addition to the single occasion described in the Statement

of Facts, the PSR revealed that law enforcement identified

forty-three instances of child pornography distribution

between September 2004 and January 2006, some involving

multiple images.

Following a hearing on December 19, 2007, the district

court sentenced Fugit to 240 months of imprisonment on

Count One (the statutory maximum) and seventy months of

imprisonment on Count Two, to be served consecutively,

yielding a sentence of 310 months from a guideline range of

292 to 365 months. Represented by the same counsel as during the initial plea proceedings, Fugit appealed only his sentence, and this court affirmed the judgment of the district

court. United States v. Fugit, 296 F. App’x 311 (4th Cir.

2008) (per curiam). 

On October 1, 2009, Fugit filed a motion for postconviction relief pursuant to 28 U.S.C. § 2255. He contested

his convictions on ten grounds. The district court denied the

motion in its entirety, rejecting each of Fugit’s claims on the

merits and also seeming to find that several were procedurally

defaulted. This court granted a certificate of appealability on

the following issues, which relate to Count Two only: (1)

UNITED STATES v. FUGIT 5
"whether Fugit’s stipulated conduct constituted attempted

inducement of ‘sexual activity’ of a minor within the meaning

of 18 U.S.C. § 2422(b)" and (2) "whether Fugit’s counsel rendered ineffective assistance by advising him to stipulate to the

inducement of ‘sexual activity’ and guilt under 18 U.S.C.

§ 2422(b)." 

II.

We underscore at the outset of our review the interest of the

criminal justice system in the finality of convictions, an interest repeatedly confirmed the Supreme Court. See, e.g.,

McCleskey v. Zant, 499 U.S. 467, 492-93 (1991); Henderson

v. Kibbe, 431 U.S. 145, 154 n.13 (1977). "The historical evidence demonstrates that the purposes of the writ [of habeas

corpus], at the time of the adoption of the Constitution, were

tempered by a due regard for the finality of the judgment of

the committing court." Schneckloth v. Bustamonte, 412 U.S.

218, 256 (1973) (Powell, J., concurring). Relitigation of a

conviction is a rear-view mirror, while a respect for finality

encourages those in custody to contemplate the future prospect of "becoming a constructive citizen." Id. at 262.

The Supreme Court has declared, moreover, that "the concern with finality served by the limitation on collateral attack

has special force with respect to convictions based on guilty

pleas." United States v. Timmreck, 441 U.S. 780, 784 (1979).

In explaining this corollary to the finality principle, the Court

remarked:

Every inroad on the concept of finality undermines

confidence in the integrity of our procedures; and, by

increasing the volume of judicial work, inevitably

delays and impairs the orderly administration of justice. The impact is greatest when new grounds for

setting aside guilty pleas are approved because the

vast majority of criminal convictions result from

such pleas.

6 UNITED STATES v. FUGIT
Id. (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th

Cir. 1971) (Stevens, J., dissenting)). In addition to emphasizing the sheer volume of guilty pleas, the Supreme Court has

located independent value in the fact that such a plea "usually

rest[s] . . . on a defendant’s profession of guilt in open court,"

United States v. Dominguez Benitez, 542 U.S. 74, 82-83

(2004), and allows him to demonstrate "that he is ready and

willing to admit his crime and to enter the correctional system

in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be

necessary," Brady v. United States, 397 U.S. 742, 753 (1970).

On the strength of these rationales, this circuit has long

refused to permit the casual withdrawal of guilty pleas. See,

e.g., United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.

1992) (en banc). 

Though high, the bar of finality is not insurmountable, even

in the guilty plea context. It bears emphasis, however, that

allowing a person to abrogate his guilty plea on collateral

attack represents a rare exception to the rule of finality, and

we proceed to review Fugit’s claims with this foundational

principle in mind.

III.

Fugit’s primary contention is that the district court erred in

interpreting 18 U.S.C. § 2422(b), the statute underlying his

conviction on Count Two. The government argues, however,

that the doctrine of procedural default bars this claim because

Fugit failed to raise it during his initial plea proceedings or on

direct appeal. See Massaro v. United States, 538 U.S. 500,

504 (2003) (citing United States v. Frady, 456 U.S. 152, 167-

68 (1982)). This doctrine, too, rests on the law’s basic interest

in finality. Id. ("The procedural-default rule is neither a statutory nor a constitutional requirement, but it is a doctrine

adhered to by the courts to conserve judicial resources and to

respect the law’s important interest in the finality of judgments."). 

UNITED STATES v. FUGIT 7
Fugit did not make the statutory argument he now presses

during his initial plea proceedings before the district court,

and although he "contested his sentence on appeal, [he] did

not challenge the validity of his plea." Bousley v. United

States, 523 U.S. 614, 621 (1998). It would appear, therefore,

that Fugit has procedurally defaulted this claim. See id.

A procedural default, however, may be excused in two circumstances: where a person attacking his conviction can

establish (1) that he is "actually innocent" or (2) "cause" for

the default and "prejudice" resulting therefrom. Id. at 622.

While a successful showing on either actual innocence or

cause and prejudice would suffice to excuse the default, Fugit

contends that he can accomplish both. We consider Fugit’s

actual innocence claim first—an analysis that, incidentally,

requires us to resolve the underlying statutory dispute. 

As outlined above, 18 U.S.C. § 2422(b) comprises four elements: "(1) use of a facility of interstate commerce; (2) to

knowingly persuade, induce, entice, or coerce; (3) a person

who is younger than eighteen; (4) to engage in an illegal sexual activity." United States v. Kaye, 451 F. Supp. 2d 775, 782

(E.D. Va. 2006). Fugit’s claim of actual innocence focuses

exclusively on the "sexual activity" component of the fourth

element. He contests neither the other three elements nor the

illegality component of the fourth, effectively conceding that

his behavior violated § 18.2-370 of the Code of Virginia,

which prohibits taking indecent liberties with children. Fugit

acknowledges that his behavior was—to put it mildly—

"reprehensible." Nevertheless, he argues that the phrase "sexual activity" in § 2422(b) incorporates an irreducible minimum of interpersonal physical contact—and that, because the

relevant interactions with his victims neither included nor referenced such contact, he cannot have been guilty of violating

the statute. 

We first interpret the phrase "sexual activity" as used in

§ 2422(b) and then proceed to apply that interpretation to

Fugit’s actual innocence claim.

8 UNITED STATES v. FUGIT
A.

For the reasons that follow, we hold that interpersonal

physical contact is not a requirement of § 2422(b)’s "sexual

activity" element. 

"Statutory interpretation necessarily begins with an analysis

of the language of the statute." Chris v. Tenet, 221 F.3d 648,

651 (4th Cir. 2000). As far as the text of § 2422(b) is concerned, Fugit appears to have pulled his proposed interpersonal physical contact requirement out of a hat. The statute is

simply not framed in the terms for which he contends: it mentions nothing about physical contact. In fact, it does not

expressly demarcate the meaning of "sexual activity" in any

way, instead leaving the term undefined. By contrast, where

similar statutory terms were meant to encompass only a specific subset of conduct, Congress took care to define them

explicitly for purposes of the sections or chapters in which

they are found. See, e.g., 18 U.S.C. § 2246(2) (defining "sexual act"); id. § 2246(3) (defining "sexual contact"); id.

§ 2256(2) (defining "sexually explicit conduct"); id. § 2423(f)

(defining "illicit sexual conduct"). 

When analyzing the meaning of an undefined statutory

term, "we must first ‘determine whether the language at issue

has a plain and unambiguous meaning.’" Chris, 221 F.3d at

651 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340

(1997)). We think the meaning of "sexual activity" in

§ 2422(b) is indeed plain and that this meaning extends

beyond interpersonal physical contact.

This court has long consulted dictionaries of common

usage in order to establish the plain meaning of disputed statutory language. See Nat’l Coal. for Students with Disabilities

Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 289 (4th Cir.

1998). In determining the meaning of "sexual," we find

instructive a definition from Webster’s: "of or relating to the

sphere of behavior associated with libidinal gratification."

UNITED STATES v. FUGIT 9
Webster’s New International Dictionary 2082 (3d ed. 1993).

This court has previously relied on this very definition in a

related context. See United States v. Diaz-Ibarra, 522 F.3d

343, 349 (4th Cir. 2008) (interpreting the phrase "sexual

abuse of a minor" for purposes of sentencing enhancement in

U.S. Sentencing Guidelines Manual § 2L1.2). Likewise, we

find the most pertinent definition of "activity" to be "an occupation, pursuit, or recreation in which a person is active."

Webster’s, supra, at 22. 

Thus, as a matter of plain meaning, the phrase "sexual

activity" as used in § 2422(b) comprises conduct connected

with the "active pursuit of libidinal gratification" on the part

of any individual. The fact that such conduct need not involve

interpersonal physical contact is self-evident. See DiazIbarra, 522 F.3d at 351-52 (concluding that "‘sexual abuse of

a minor’ means the ‘perpetrator’s physical or nonphysical

misuse or maltreatment of a minor for a purpose associated

with sexual gratification’" (emphasis added)). 

This meaning of the "sexual activity" element is not only

plain; it also renders the statutory scheme coherent as a

whole. This court has made clear that § 2422(b) "was

designed to protect children from the act of solicitation itself."

United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012)

(quoting United States v. Hughes, 632 F.3d 956, 961 (6th Cir.

2011), cert. denied, 131 S. Ct. 2975 (2011)). Consequently,

by forbidding the knowing persuasion, inducement, enticement, or coercion of a minor, the statute "criminalizes an

intentional attempt to achieve a mental state—a minor’s

assent—regardless of the accused’s intentions concerning the

actual consummation of sexual activities with the minor." Id.

(quoting United States v. Berk, 652 F.3d 132, 140 (1st Cir.

2011)). The primary evil that Congress meant to avert by

enacting § 2422(b) was the psychological sexualization of

children, and this evil can surely obtain in situations where

the contemplated conduct does not involve interpersonal

physical contact.

10 UNITED STATES v. FUGIT
We cannot accept Fugit’s contention that absent an interpersonal physical contact requirement, § 2422(b) becomes a

trap capable of snaring all sorts of innocent behavior. For several reasons, our interpretation of the term "sexual activity" is

hardly open-ended. First, wide swaths of behavior simply cannot be described as "sexual activity": indeed, the overwhelming preponderance of human interaction does not involve the

"active pursuit of libidinal gratification" in any minimally tenable way. 

Second, § 2422(b) concerns only conduct that is already

criminally prohibited. That is, § 2422(b) does not criminalize

enticement of "sexual activity," full stop; instead, it forbids

enticement of "sexual activity for which any person can be

charged with a criminal offense." The latter category is considerably narrower than the former. As a general matter, conduct that is innocuous, ambiguous, or merely flirtatious is not

criminal and thus not subject to prosecution under § 2422(b).

Third, § 2422(b) addresses only behavior involving children. And there exists, of course, a vast range of everyday

adult-child interactions that are neither remotely erotic nor

independently illegal—from the salutary mentoring of teachers, coaches, and counselors to the unintentional jostling

between strangers traversing a crowded city sidewalk. 

Finally, we believe that the Seventh Circuit’s decision in

United States v. Taylor, 640 F.3d 255 (7th Cir. 2011), upon

which Fugit places great weight, was mistaken. The Taylor

court held that the phrase "sexual activity" in § 2422(b) is

synonymous with the phrase "sexual act," as defined in 18

U.S.C. § 2246(2). Id. at 259-60. That complex provision

defines "sexual act" to require not only interpersonal physical

contact but interpersonal physical contact involving the genitalia or anus—and, for persons who are sixteen or older,

requires either oral sex or actual penetration of the genital or

anal opening. 

UNITED STATES v. FUGIT 11
We decline Taylor’s invitation to cut and paste this restrictive definition into § 2422(b) because doing so would contravene express statutory text. Section 2246 explicitly limits the

definitions provided therein to the chapter in which it resides.

Specifically, the very first words of the section are "[a]s used

in this chapter" (with the various definitions following), and

the section’s title is "[d]efinitions for chapter." Whereas

§ 2246 appears in Chapter 109A of Title 18, § 2422(b) is situated in an entirely different location, Chapter 117. Simply put,

we find "no indication that Congress intended to import the

definitions of chapter 109A to [another] chapter." United

States v. Sonnenberg, 556 F.3d 667, 670 (8th Cir. 2009). 

For the foregoing reasons, we hold that the phrase "sexual

activity" in § 2422(b) denotes conduct connected with the

"active pursuit of libidinal gratification" on the part of any

individual—nothing more, nothing less—and, therefore, does

not incorporate an invariable requirement of interpersonal

physical contact. 

B.

Having thus determined the interpretation of § 2422(b)’s

"sexual activity" element, we must analyze whether the conduct at issue in this case supports Fugit’s claim of actual innocence. In order to succeed, Fugit "must demonstrate that, ‘in

light of all the evidence,’ ‘it is more likely than not that no

reasonable juror would have convicted him.’" Bousley, 523

U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28

(1995)).

1.

At the threshold of the actual innocence inquiry, the parties

spar over what universe of facts this court may take into

account. Fugit asserts that this universe is small and strictly

bounded. Invoking the precise text of the certificate of

appealability, Fugit contends that our review is limited to

12 UNITED STATES v. FUGIT
whether his "stipulated conduct constituted attempted inducement of ‘sexual activity’ of a minor within the meaning of 18

U.S.C. § 2422(b)." He further argues that "stipulated conduct"

refers only to the Statement of Facts to which he conceded as

part of his guilty plea. 

For several reasons, we think that the range of relevant conduct is significantly broader—even assuming that Fugit is correct that the phrase "stipulated conduct" in the certificate of

appealability denotes only the conduct discussed in the Statement of Facts. We are guided, first, by the Supreme Court’s

clear instruction that, because acceptance of a claim of actual

innocence from someone previously adjudicated guilty represents an extraordinary form of relief, the scope of pertinent

evidence is expansive. Schlup’s requirement that a person

prove actual innocence "in light of all the evidence" points to

this principle, 513 U.S. at 328 (emphasis added), and in Bousley, the Court made it explicit:

It is important to note . . . that "actual innocence"

means factual innocence, not mere legal insufficiency. In other words, the Government is not limited to the existing record to rebut any showing that

petitioner might make . . . [and may rely on] any

admissible evidence of petitioner’s guilt even if that

evidence was not presented during petitioner’s plea

colloquy . . . . 

523 U.S. at 623-24. 

Moreover, the Supreme Court has specifically linked the

notion that actual innocence claims must surmount a high hurdle to the systemic interest in finality. See, e.g., Schlup, 513

U.S. at 324 (describing actual innocence jurisprudence as

"seek[ing] to balance the societal interests in finality, comity,

and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case");

Sawyer v. Whitley, 505 U.S. 333, 345 (1992) ("[P]etitioner’s

UNITED STATES v. FUGIT 13
standard [for actual innocence claims] would so broaden the

inquiry as to make it anything but a ‘narrow’ exception to the

principle of finality that we have previously described it to

be."). Given the Court’s pronouncements, we can only greet

skeptically Fugit’s effort to constrict the universe of evidence

relevant to his belated actual innocence claim.

Second, Gonzalez v. Thaler, 132 S. Ct. 641 (2012), confirms the propriety of considering a broad base of evidence

despite the arguably narrow span of the certificate of appealability. At issue in Gonzalez was 28 U.S.C. § 2253(c), which

requires that a person seeking to challenge an adverse district

court judgment on collateral attack obtain a certificate of

appealability. Specifically, § 2253(c) provides:

(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to

the court of appeals from—

(A) the final order in a habeas corpus proceeding in which the detention complained

of arises out of process issued by a State

court; or 

(B) the final order in a proceeding under

section 2255.

(2) A certificate of appealability may issue under

paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional

right.

(3) The certificate of appealability under paragraph

(1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

The Gonzalez Court determined that, whereas the baseline

requirement of a certificate’s existence in § 2253(c)(1) is

14 UNITED STATES v. FUGIT
jurisdictional in nature, the directive stated in subsection

(c)(3) constitutes a mere "claim-processing rule" and is consequently non-jurisdictional. Id. at 648-49. "Accordingly," the

Court decided, "a judge’s failure to ‘indicate’ the requisite

constitutional issue . . . does not deprive a court of appeals of

subject-matter jurisdiction to adjudicate [an] appeal." Id. at

646. 

By holding that the specific wording of the certificate of

appealability does not limit a court’s ability to adjudicate a

collateral attack as a matter of subject matter jurisdiction,

Gonzalez directs the conclusion that the reference to "stipulated conduct" in the certificate does not constrain our consideration of Fugit’s actual innocence claim in view of all of the

evidence in the record. In light of Bousley’s unequivocal message that resolving such claims on an artificially restricted

record would eviscerate the critical systemic interest in finality, we believe that we would be mistaken to confine our analysis to the stipulated Statement of Facts. Gonzalez confirms

that we need not do so.

And third, to treat the certificate of appealability as circumscribing the permissible ambit of arguments offered by the

government—as Fugit would have it—entirely upends congressional intent as to the nature of appellate review over collateral challenges to convictions. The Federal Rules of

Appellate Procedure make manifest that while the convicted

individual "cannot take an appeal unless a circuit justice or a

circuit or district judge issues a certificate of appealability

under 28 U.S.C. § 2253(c)," a certificate "is not required

when a state or its representative or the United States or its

representative appeals." Fed. R. App. P. 22(b)(1), (3); see also

Fed. R. App. P. 22 advisory committee’s note. The fact that

the government need not obtain a certificate of appealability

at all strongly indicates that the function of the certificate is

to restrain the appeal of insubstantial claims on collateral

attack, not to restrict artificially the government’s capacity to

respond to them.

UNITED STATES v. FUGIT 15
Although we thus decline to confine our review of Fugit’s

actual innocence claim to the Statement of Facts, we find it

unnecessary to explore the outer parameters of permissible

evidence. In particular, the facts set forth in the PSR stand on

a different—and firmer—footing than does other potentially

inculpatory evidence uncovered during the police investigation. As discussed above, Bousley speaks of "admissible evidence of petitioner’s guilt." 523 U.S. at 624 (emphasis added).

Here, Fugit conceded the conduct discussed in the PSR in

open court (besides one allegation upon which we do not

rely), and the trial judge accordingly used those allegations as

the basis for his sentencing calculations, which this court has

affirmed. There is no need for us to address other evidence.

2.

With the boundaries of inquiry thus established, Fugit’s

actual innocence claim fails by a wide margin. 

Given the interpretation of § 2422(b)’s "sexual activity"

element established above, Fugit falls far short of proving that

"it is more likely than not that no reasonable juror would have

convicted him" on Count Two, the § 2422(b) enticement

charge. Schlup, 513 U.S. at 327. In fact, Fugit’s conceded

conduct so surely satisfies the "sexual activity" element that

it is difficult to conceive of any reasonable juror not convicting him. 

Count Two appears to have been based on Fugit’s behavior

toward Jane Doe #2. The conduct described in the PSR with

respect to this victim is condemnatory. Fugit tricked this

eleven-year-old child into providing her telephone number

during an online chat in which he pretended to befriend her

as a girl named "Kimberly." During that chat, Fugit "inquired

as to the child’s breast size, her underwear, and whether or

not she had been nude in front of boys." When he telephoned

her, "[t]he victim asked to speak to Kimberly, however, the

defendant refused and stated that he was Kimberly’s father

16 UNITED STATES v. FUGIT
and needed to ask the victim some questions first." Later in

the conversation, he "inquired as to where the victim’s parents

were and told her he wanted her to go to another room." Fugit

thus attempted to lure this young girl away from her protectors in hopes of exploiting her undisturbed. The PSR further

describes Fugit’s telephone inquiries to Jane Doe #2 "about

her underwear and bras" and whether she "had seen other girls

naked," had been "in a hot tub with other girls and boys," had

"seen a grown man naked," and "would mind seeing him

naked." Following these questions, Fugit requested that she

remove her shirt and, on more than one occasion, demanded

that she take off her pants as well. He also asked her to masturbate. That such conduct qualifies as involving the "active

pursuit of libidinal gratification" on Fugit’s part is beyond

question.

Nor is the conduct disclosed in the Statement of Facts at all

exonerative. To the contrary, that document described how

Fugit baited two children into participating in "inappropriate

sexual conversation[s]" and asked at least one a barrage of

questions regarding her anatomy, underwear, and experiences,

as well as whether the two of them could be naked in front of

each other. Engaging young girls in the kind of discussions

described above plainly involves them in "sexual activity"—

that is, the "active pursuit of libidinal gratification." The idea

of an adult man behaving in such a manner is utterly unpersuasive of "actual innocence," and Fugit’s procedural default

of his statutory claim cannot be excused on this ground.

C.

Fugit maintains, however, that he can satisfy the second

ground for excusing procedural default, cause and prejudice,

by establishing ineffective assistance of counsel under the

Sixth Amendment. See Murray v. Carrier, 477 U.S. 478, 488

(1986) ("Ineffective assistance of counsel . . . is cause for a

procedural default."). As an initial matter, this court has

agreed to consider a limited subset of Fugit’s ineffective

UNITED STATES v. FUGIT 17
assistance claims, and there is some question as to whether

those theories are sufficiently connected to the procedural

default in order to excuse it. We conclude, though, that we

need not consider Fugit’s ineffective assistance arguments for

this purpose at all, given the above disposition of the dispute

over the meaning of § 2422(b)’s "sexual activity" element.

That is, because we have decided that Fugit’s statutory claim

fails on the merits, whether that claim is defaulted has become

irrelevant.

IV.

Moreover, Fugit’s ineffective assistance arguments provide

no substantive grounds for relief. The Supreme Court has

made clear that ineffective assistance challenges brought

under the aegis of § 2255 are not themselves susceptible to

procedural default. Massaro v. United States, 538 U.S. 500,

503-04 (2003). We do not think, however, that Fugit’s ineffective assistance claims provide any independent basis for

overturning his conviction on Count Two. 

The framework governing this analysis is familiar. In order

to establish ineffective assistance under the Sixth Amendment, a person must show (1) that his attorney’s performance

"fell below an objective standard of reasonableness" and (2)

that he experienced prejudice as a result, meaning that there

exists "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different." Strickland v. Washington, 466 U.S. 668, 687-88,

694 (1984). A different inquiry is necessary with respect to

the prejudice prong, however, where a conviction is based

upon a guilty plea. In that situation, a person must demonstrate "a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on

going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). In

discussing "the importance of protecting the finality of convictions obtained through guilty pleas," the Supreme Court

recently declared that "[s]urmounting Strickland’s high bar is

18 UNITED STATES v. FUGIT
never an easy task." Padilla v. Kentucky, 130 S.Ct. 1473,

1484-85 (2010).

A.

As for Strickland’s first prong, Fugit argues that his counsel’s advice to plead guilty to Count Two constituted deficient

performance for two reasons. First, Fugit contends that his

attorney failed to inform him of a critical defense—

specifically, the argument that § 2422(b)’s "sexual activity"

element includes an interpersonal physical contact requirement. Given our rejection of this defense above, we find that

the performance of Fugit’s attorney did not fall below an

objective standard of reasonableness on this ground. Just as

"[i]t is certainly reasonable for counsel not to raise unmeritorious claims," Truesdale v. Moore, 142 F.3d 749, 756 (4th Cir.

1998), it is equally reasonable for counsel not to advise clients

of unmeritorious defenses. 

Next, Fugit argues that his attorney performed deficiently

by imparting erroneous advice regarding the plea process and

its consequences. Specifically, Fugit contends that his attorney incorrectly informed him that he could not enter a "split

plea" of guilty to Count One and not guilty to Count Two

because both counts were presented in the same indictment.

Fugit also contends that his attorney told him that if he

pleaded guilty to both counts, his sentences would run concurrently (again because both counts were contained in a single

indictment), whereas, in actuality, the sentencing court

retained discretion to select either concurrent or consecutive

sentences and, in fact, ordered the latter. While any such

advice would have been erroneous, Fugit nonetheless fails to

satisfy the prejudice prong of the Lockhart inquiry.

B.

As outlined above, in order to prove prejudice in the guilty

plea context, a person challenging his conviction must estabUNITED STATES v. FUGIT 19
lish "a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on

going to trial." Lockhart, 474 U.S. at 59. The Supreme Court

has specified, furthermore, that such an individual "must convince the court" that such a decision "would have been rational under the circumstances." Padilla, 130 S. Ct. at 1485. The

challenger’s subjective preferences, therefore, are not dispositive; what matters is whether proceeding to trial would have

been objectively reasonable in light of all of the facts. See

Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012)

("The test is objective, not subjective . . . .").

Fugit falls far short of satisfying this standard. He insists

that "the record is . . . clear" that he "would not have pleaded

guilty to Count Two but for trial counsel’s erroneous advice."

Even if this statement is subjectively true, however, the decision to go to trial would not have been objectively reasonable

for the reasons discussed above. The evidence on Count Two

was overwhelming. Fugit conceded to contacting a young girl

over both the internet and telephone, lulling her into a false

sense of security by lying about his identity, asking her a sustained series of totally inappropriate questions, and making

numerous patently lewd comments—including soliciting her

to undress and to masturbate. What is more, had Fugit proceeded to trial, he would have undoubtedly opened himself up

to multiple additional charges relating to multiple other victims and to child pornography as well. 

Fugit, in other words, was lucky to receive the deal that he

did. Pleading guilty generally involves a conscious decision to

accept both the benefits and burdens of a bargain. That decision may not be lightly undone by buyer’s remorse on the part

of one who has reaped advantage from the purchase. Fugit,

consequently, cannot show that declining to plead guilty

"would have been rational under the circumstances," Padilla,

130 S. Ct. at 1485, and his remaining ineffective assistance

arguments thus fail for lack of prejudice. See Pilla, 668 F.3d

at 373 (finding that proceeding to trial would have been irra20 UNITED STATES v. FUGIT
tional where defendant "faced overwhelming evidence of her

guilt" and "had no rational defense, would have been convicted and would have faced a longer term of incarceration").

V.

There are cases where the most learned doctrines of law

match the most untutored lessons of common experience.

This is one of those. There is no innocence here, save that of

the child victims. Collateral review has nothing to correct.

The judgment is affirmed.

AFFIRMED 

UNITED STATES v. FUGIT 21