UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, ) 

Plaintiff, ) 

) 

 v. ) CAUSE NO.: 2:16-CR-47-JVB-JEM

) 2:19-CV-477-JVB

WILLARD ABATIE, ) 

Defendant. ) 

OPINION AND ORDER

This matter is before the Court on a Motion Under 28 U.S.C. § 2255 [DE 58] filed by 

Defendant Willard Abatie on December 11, 2019. The Government filed a response on February 

8, 2020, and Abatie filed a reply on March 5, 2020. 

PROCEDURAL BACKGROUND

Abatie was charged in a three-count indictment with (1) coercion and enticement of a minor 

in violation of 18 U.S.C. §§ 2(a), 2422(b), (2) production of child pornography in violation of 18 

U.S.C. §§ 2(a), 2251(a), and (3) receipt of child pornography in violation of 18 U.S.C.

§ 2252(a)(2).On July 27, 2016, Abatie pled guilty to Count 1 pursuant to a plea agreement. In line 

with the plea agreement, Counts 2 and 3 were dismissed on the Government’s motion at the May 

11, 2017 sentencing. On Count 1, the Court sentenced Abatie to 292 months of imprisonment 

followed by five years of supervised release.

Abatie was appointed Adam Tavitas as counsel on March 31, 2016. Tavitas remained as 

counsel through the close of the case. 

ANALYSIS

Title 28 section 2255(a) provides that a federal prisoner “claiming the right to be released 

upon the ground that the sentence was imposed in violation of the Constitution or laws of the 

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United States . . . may move the court which imposed the sentence to vacate, set aside or correct 

the sentence.” Relief under § 2255 is only appropriate for “an error of law that is jurisdictional, 

constitutional, or constitutes a fundamental defect which inherently results in a complete 

miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting Borre 

v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). Abatie argues that he should be granted relief 

under § 2255 due to ineffective assistance of his trial counsel, which is a Sixth Amendment issue.

A. Ineffective Assistance of Counsel Standard

Supreme Court case Strickland v. Washington provides the standard for ineffective 

assistance of counsel. 466 U.S. 668 (1984). This standard requires that “a defendant claiming 

ineffective counsel must show that counsel’s actions were not supported by a reasonable strategy 

and that the error was prejudicial.” Massaro v. United States, 538 U.S. 500, 505 (2003). The two 

parts of the standard are often referred to as the “performance” prong and the “prejudice” prong. 

An ineffective-assistance claim can function as a way to escape rules of waiver and 

forfeiture and raise issues not presented at trial, and so the Strickland standard must 

be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the 

integrity of the very adversary process the right to counsel is meant to serve.

Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).

The performance prong is met if the challenger shows that counsel’s representation “fell 

below an objective standard of reasonableness.” Vinyard v. United States, 804 F.3d 1218, 1225 

(7th Cir. 2015). The review of an attorney’s performance is highly deferential to mitigate hindsight 

bias, and the Court “must indulge a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. “The challenger’s 

burden is to show that counsel made errors so serious that counsel was not functioning as the 

counsel guaranteed the defendant by the Sixth Amendment.” Harrington, 562 U.S. at 104 (internal 

quotation marks omitted). The Strickland analysis “calls for an inquiry into the objective 

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reasonableness of counsel’s performance, not counsel’s subjective state of mind.” Harris v. United 

States, 13 F.4th 623, 630 (7th Cir. 2021), reh’g denied (Nov. 10, 2021) (quoting Harrington, 562 

U.S. at 110). The Court “will not presume deficient performance based on a silent record because 

[the Court] presume[s] counsel made reasonable strategic choices unless the defendant presents 

evidence rebutting that presumption. United States v. Traeger, 289 F.3d 461, 472 (7th Cir. 2002).

A lawyer does not have a duty to assert a frivolous argument. See Fuller v. United States, 398 F.3d 

644, 652 (7th Cir. 2005).

The prejudice prong is met if the challenger shows “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 694).

B. Sentencing Enhancements and Nelson

Abatie contends that his counsel was ineffective for failing to object to sentencing 

enhancements that Abatie agreed to in his plea agreement, specifically U.S.S.G. 

§§ 2G2.1(b)(2)(A), 2G2.1(b)(6)(B), and 4B1.5(b)(1), because relevant conduct relating to the 

dismissed counts was used to enhance Abatie’s sentence.

In United States v. Watts, the Supreme Court held that a court may consider dismissed

relevant conduct at sentencing if it has been proved by a preponderance of the evidence. 519 U.S. 

148, 156-57 (1997).

Abatie argues that Nelson v. Colorado, 117 S.Ct. 1249 (2017), decided shortly before he

was sentenced, invalidated Watts. In Nelson, the Supreme Court found a Colorado statute to be 

unconstitutional because the Fourteenth Amendment right to due process is violated by the way 

that statute handled the refund of costs, fees, and restitution after a defendant’s criminal conviction 

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is invalidated. 117 S.Ct. at 1255. Despite Abatie’s protestations to the contrary, Nelson did nothing 

to invalidate Watts. See United States v. Verduzco Velazquez, 2019 WL 2076596, at *2 (N.D. Ind. 

May 9, 2019) (“The Nelson case did not discuss, at any level, the use of relevant conduct at 

sentencing.”); Whitfield v. United States, 2018 WL 3993809, at * 5 (N.D. Ill., Aug. 21, 2018) (“In 

short, the Nelson Court did not discuss relevant conduct at sentencing. . . . [T]he Nelson decision 

has no bearing on [this] case.”); see also United States v. Thurman, 889 F.3d 356, 371 (7th Cir. 

2018) (noting that the Supreme Court has not overruled Watts, which is still binding authority). 

Watts remains good law, so counsel’s performance was not deficient by failing to present Abatie’s 

argument about Nelson. 

Even if future jurisprudence extends Nelson the way Abatie argues it should be extended, 

effective assistance of counsel “does not require counsel to forecast changes or advances in the 

law.” Valenzuela v. United States, 261 F.3d 694, 700 (7th Cir. 2001). Counsel was not ineffective 

for failing to object to the sentencing enhancements under Nelson, so the Court denies relief on 

this argument.

C. Double Jeopardy/Double Counting

Abatie argues that counsel was ineffective for failing to make a double jeopardy or double 

counting objection to the five-level enhancement under U.S.S.G. § 4B1.5(b)(1) and the two-level 

enhancement under U.S.S.G. § 2G2.1(b)(2)(A). The Fifth Amendment protection against double 

jeopardy protects against multiple punishments for the same offense. Shiro v. Farley, 510 U.S. 

222, 229 (1994). When calculating the guidelines sentencing range, double counting is “using the 

same conduct more than once to increase a defendant’s guidelines sentencing range.” United States 

v. Vizcarra, 668 F.3d 516, 519 (2012). Double counting is not a constitutional issue and is only 

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prohibited where the sentencing guidelines expressly state so. United States v. Vizcarra, 668 F.3d 

516, 519 (7th Cir. 2012).

Despite Abatie’s argument to the contrary, § 4B1.5(b) does not raise a concern of

impermissible double counting because the text of that guideline “reflects the Commission’s intent 

that repeat offenders receive a 5-level enhancement ‘in addition to’ any calculations in Chapters 

Two and Three.” United States v. Craig, 420 F. App’x 605, 607 (7th Cir. 2011) (citing United 

States v. Von Loh, 417 F.3d 710, 715 (7th Cir. 2005)).

Section 2G2.1(b)(2)(A) also raises no double counting because the underlying offense, 

coercion and enticement of a minor, does not have as an element the defendant’s commission of a 

sexual act or sexual contact, which is what the sentencing enhancement requires. See United States 

v. Berg, 640 F.3d 239, 250-51 (7th Cir. 2011).

Because there is no double jeopardy or double counting issue, counsel was not ineffective 

for failing to object on these grounds.

D. Substantive Challenges

Abatie also appears to challenge the merits of the enhancements’ application to the facts of

his case. However, Abatie’s plea agreement contained a waiver of Abatie’s right to contest through 

§ 2255 his conviction and sentence on any ground other than a claim of ineffective assistance of 

counsel. (Plea Agreement ¶ 7(g), ECF No. 18). Pursuant to the waiver, the Court denies Abatie’s 

motion as to the substantive challenges to the guidelines calculations used in sentencing.

E. Certificate of Appealability

Section 102 of the Anti-Terrorism and Effective Death Penalty Act provides that a 

Certificate of Appealability may be issued only upon a “substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing” is “a demonstration that . . . 

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includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the 

petition should have been resolved in a different manner or that the issues presented were adequate 

to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473 (2000). Abatie 

has not made such a substantial showing, so the Court declines to enter a certificate of 

appealability.

CONCLUSION

Based on the forgoing, the Court hereby DENIES the Motion Under 28 U.S.C. § 2255 

[DE 58] and DECLINES to enter a certificate of appealability.

 SO ORDERED on October 4, 2022. 

s/ Joseph S. Van Bokkelen 

JOSEPH S. VAN BOKKELEN, JUDGE

UNITED STATES DISTRICT COURT

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