[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-15316

Non-Argument Calendar

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D.C. Docket Nos. 1:16-cv-00134-MW-GRJ,

1:14-cr-00015-MW-GRJ-1

JOSEPH MICHAEL DIAZ, 

 Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Florida

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(January 13, 2020)

Before WILSON, BRANCH, and FAY, Circuit Judges.

PER CURIAM: 

Joseph Diaz appeals the denial of his 28 U.S.C. § 2255 motion to vacate his 

sentence. We issued a certificate of appealability (COA) on two issues: 

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(1) whether Diaz’s counsel was ineffective for failing to object to the district 

court’s enhancement of Diaz’s sentence under U.S.S.G. § 2G2.1(b)(2)(A); and 

(2) whether the district court erred by failing to hold an evidentiary hearing to 

determine whether his counsel was ineffective for failing to file a notice of appeal. 

Because Diaz has not demonstrated reversible error on either issue, we affirm.

BACKGROUND

Diaz is serving a 720-month sentence for two counts of producing child 

pornography, in violation of 18 U.S.C. § 2251(a). Briefly stated, Diaz was a 

teacher and swim coach who used the latter position to abuse minor boys. Five 

members of his swim team—each of whom were over 12 years of age, but younger 

than 16—reported that they engaged in various forms of sexual activity that were

either filmed or photographed as part of an “initiation.” The “initiation” involved 

three levels, where, at the direction of Diaz, the children: (1) exposed their privates

to Diaz, (2) used Diaz’s phone to take nude photos of themselves, and (3) used 

Diaz’s phone to record videos of themselves masturbating. A search of Diaz’s 

various media devices yielded over 1,000 videos and over 9,000 images of child 

pornography, including images of the members of the swim team who were 

“initiated” into Diaz’s “club.” Though indicted on six counts of production of 

child pornography, with the benefit of a plea agreement, Diaz pled guilty to only 

Counts One and Two. 

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Probation prepared a presentence report (PSR), which indicated that

U.S.S.G. § 2G2.1 was the appropriate guideline for both Counts One and Two.1

 

Diaz’s adjusted offense level was 42 and his criminal history category was I. His 

recommended guideline range was 360 months’ imprisonment to life on each 

count. Of the various enhancements and adjustments to his offense level, only one 

is relevant here: under § 2G2.1(b)(2)(A), a two-level enhancement was added to 

both counts because the offense involved the commission of a sexual act or 

contact. According to the PSR, the enhancement was warranted because Diaz 

“masturbated in front of the victims and at times would have the victims 

masturbate themselves and/or each other while he watched.” Diaz’s counsel did 

not object to this recommended enhancement. 

Diaz was sentenced to 360 months’ imprisonment on each count, to run 

consecutively, followed by a lifetime of supervised release. He did not appeal his 

convictions or sentences. 

DISCUSSION

I.

In his § 2255 motion, Diaz claims that his counsel was ineffective for failing 

to object to the district court’s application of the two-level enhancement under

1 Diaz was sentenced under the 2013 Sentencing Guidelines. Therefore, all guideline citations 

are to that version.

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§ 2G2.1(b)(2)(A). In his view, the behavior supporting the enhancement—that he 

masturbated in front of the victims or had them masturbate themselves—was not 

relevant conduct that the district court could consider because there was 

insufficient evidence that he committed these acts in preparation for, during the 

commission of, or in order to avoid detection or responsibility for the offenses of 

conviction. Specifically, Diaz contends that because he was convicted of conduct 

that occurred before the behavior supporting the enhancement, the latter could not 

support the former as relevant conduct. He also argues that counsel should have 

been aware that other circuits have narrowed the acts considered as relevant 

conduct. Therefore, Diaz argues his counsel should have objected to the 

application of this enhancement. 

When reviewing the denial of a § 2255 motion, we review legal conclusions 

de novo and findings of fact for clear error. Spencer v. United States, 773 F.3d 

1132, 1137 (11th Cir. 2014) (en banc). Whether trial counsel was ineffective is a 

mixed question of law and fact that is reviewed de novo. United States v. Bender, 

290 F.3d 1279, 1284 (11th Cir. 2002). To succeed on an ineffective-assistance 

claim, a movant must show that: (1) his attorney’s conduct was deficient; and 

(2) the deficient conduct prejudiced his defense. Strickland v. Washington, 466 

U.S. 668, 687 (1984). But there is no reason for a court deciding an ineffectiveassistance-of-counsel claim to address both components of the Strickland inquiry if 

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the movant makes an insufficient showing on one. See Holladay v. Haley, 209 

F.3d 1243, 1248 (11th Cir. 2000). 

Assuming, without deciding, that an objection to the § 2G2.1(b)(2)(A)

enhancement would have been meritorious, we begin—and end—our inquiry with 

the deficiency prong of the Strickland analysis.

2

 Counsel’s conduct is deficient if 

it falls below the wide range of competence demanded of attorneys in criminal 

cases. Strickland, 466 U.S. at 687. Successful ineffective-assistance claims 

demonstrate “that no competent counsel would have taken the action that . . . 

counsel did take.” United States v. Freixas, 332 F.3d 1314, 1319–20 (11th Cir. 

2003). Generally, there is a “strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.” Strickland, 466 U.S.

at 689. 

If a legal principal is unsettled, counsel is not deficient “for an error in 

judgment.” Black v. United States, 373 F.3d 1140, 1144 (11th Cir. 2004). Thus, if 

2 The government argues that Diaz’s counsel was not ineffective because any objection to the 

§ 2G2.1(b)(2)(A) enhancement, or the relevant conduct supporting it, would have been meritless. 

See Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015) (per curiam) (“Failing to 

make a meritless objection does not constitute deficient performance.”). In the government’s 

view, the convicted conduct was part of Diaz’s “grooming” of the victims because his behavior 

“was intended to and did in fact escalate from photographs of genitalia to videos of masturbation 

to sexual molestation.” We need not consider this argument—or Diaz’s related argument about 

the timing and the meaning of relevant conduct—since his claim fails on other grounds and we 

“may affirm the judgment of the district court on any ground supported by the record, regardless 

of whether that ground was relied upon or even considered by the district court.” Kernel 

Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012). 

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an attorney could have reasonably reached the incorrect conclusion concerning an 

unsettled question of law, “that attorney’s performance will not be deemed 

deficient for not raising that issue to the court.” Id. However, “the mere absence 

of authority does not automatically insulate counsel’s failure to object on that 

basis.” Gallo-Chamorro v. United States, 233 F.3d 1298, 1304 (11th Cir. 2000). 

If other circuits have addressed the issue on the merits, this may indicate that a 

challenge “on such grounds was not wholly without precedent.” Id.

Under U.S.S.G. § 1B1.3(a)(1)(A), “specific offense characteristics . . . shall 

be determined on the basis of . . . all acts and omissions committed . . . or willfully 

caused by the defendant . . . that occurred during the commission of the offense of 

conviction.”3

 The Guidelines define an offense as “the offense of conviction and 

all relevant conduct under § 1B1.3.” Id. § 1B1.1, comment. (n.1(H)). Section 

1B1.3(a)(1) focuses “on the specific acts and omissions for which the defendant is 

to be held accountable in determining the applicable guideline range, rather than on 

whether the defendant is criminally liable for an offense.” Id. § 1B1.3, comment. 

(n.1). The background section of § 1B1.3’s Commentary states that: 

[c]onduct that is not formally charged or is not an element of the offense 

of conviction may enter into the determination of the applicable 

guideline sentencing range. The range of information that may be 

3 Under Section 1B1.3, relevant conduct also includes those acts that occurred in “preparation for 

that offense, or in the course of attempting to avoid detection or responsibility for that offense.” 

U.S.S.G. § 1B1.3(a)(1)(A). But the government’s arguments focus on demonstrating that the 

acts that occurred during the offenses of conviction, so we have trained our focus there too.

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considered at sentencing is broader than the range of information upon 

which the applicable sentencing range is determined. 

Id. § 1B1.3, comment. (backg’d). 

The scope and contours of § 1B1.3(a) are not settled in this circuit. We have

not defined the scope of § 1B1.3’s phrase “occurred during the commission of the 

offense of conviction.” See id. § 1B1.3(a)(1). But the term “‘offense of 

conviction’ is narrow[] in scope, referring only to the conduct charged in the 

indictment for which the defendant was convicted.” See United States v. 

Scroggins, 880 F.2d 1204, 1209 n.12 (11th Cir. 1989). And while we have stated 

that we “broadly interpret[] the provisions of the relevant conduct guideline,” 

United States v. Behr, 93 F.3d 764, 765 (11th Cir. 1996) (per curiam), we have not 

defined the precise scope of “relevant conduct.” 

Diaz and the government cite to decisions of our sister circuits which, even 

if they are not controlling, are relevant to this appeal. See Gallo-Chamorro, 233 

F.3d at 1304. Diaz relies on two cases to prove that his counsel should have 

known that an objection to the relevant conduct would have been proper: United 

States v. Wernick, 691 F.3d 108 (2d Cir. 2012) and United States v. Schock, 862 

F.3d 563 (6th Cir. 2017). In Wernick, the defendant was convicted of receiving, 

distributing, reproducing for distribution, and possessing child pornography, as 

well as for enticing minors to engage in sexual activity. Wernick, 691 F.3d at 110. 

Like Diaz, Wernick’s sentence was enhanced and the enhancement was supported 

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by what the district court considered relevant conduct: that Wernick had previously 

molested four young children. See id. at 111–13. But the Second Circuit reversed 

because “[o]ne criminal act does not become ‘relevant’ to a second act under the 

Guidelines by the bare fact of temporal overlap. . . . Without proof of 

a connection between the acts, the second event is literally a coincidence.” Id. at 

115. A similar result was reached in Schock. See 862 F.3d at 569 (interpreting the 

relevant conduct provision in § 1B1.3(a)(1) and determining that because 

“Schock’s exploitation of Victim 1 . . . did not occur until almost a year after the 

commission of the offense of conviction . . . the government [did] not establish[] 

that Schock’s conduct with respect to Victim 1 occurred during the commission of 

the offense of conviction”). 

The government relies on different cases to support its theory that a 

reasonable attorney could conclude that the § 2G2.1(b)(2) enhancement was 

properly applied. Most relevant to our inquiry is another Second Circuit decision, 

United States v. Ahders, 622 F.3d 115 (2d Cir. 2010) (per curiam). In that case, the 

defendant was convicted of one count of producing child pornography involving a 

male minor, EM. Id. at 117. The PSR included facts regarding the molestation of 

two separate victims—VB and BB—and recommended enhancing the defendant’s 

sentence under § 2G2.1(d)(1). Id. The Second Circuit held that the “conduct 

involving [the other victims] occurred during the commission of the offense of 

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conviction, as it occurred during the period that [the defendant] was producing 

pornographic images and film of EM.” Id. at 120 (internal quotation marks 

omitted). The Second Circuit stated that, because the defendant produced 

pornographic images of EM and BB together during a sleepover, the molestation of 

VB and BB was relevant conduct that the district court properly considered. Id.

In our view, these cases demonstrate that the interpretation of relevant 

conduct under § 1B1.3(a)(1) is unsettled across the circuits; they are a mixed bag 

of conflicting and non-binding law that would not have provided Diaz’s trial 

counsel with a clear definition of relevant conduct. Of the cases Diaz cites, only 

Wernick, which required “proof of a connection between the acts,” supports his

contention that trial counsel should have known to object to the definition of 

relevant conduct based on the decisions of other circuits.4

 See Wernick, 691 F.3d 

at 116. But a single decision from a non-binding circuit is not enough to show that 

trial counsel was deficient for failing to object to an enhancement when the 

interpretation of the scope of that enhancement was unsettled law in the Eleventh 

Circuit. Cf. Gallo-Chamorro, 233 F.3d at 1304. 

4 Though Diaz relies primarily on Schock to support his claim that counsel was deficient for not 

looking to other circuits, the Sixth Circuit decided Schock in 2017, well after Diaz’s sentencing. 

See generally Schock, 862 F.3d at 563. Obviously, trial counsel could not be expected to have 

known the conclusions of the Schock decision.

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In short, we refuse to find counsel deficient for a mere error in judgment 

concerning unsettled law. See Black, 373 F.3d at 1144. To hold otherwise would 

violate our oft-stated principle that “[r]easonably effective representation cannot 

and does not include a requirement to make arguments based on predictions of how 

the law may develop.” Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 

1994).

So, because the scope of relevant conduct was, and arguably still is,

unsettled, Diaz has not shown that his trial counsel was deficient. See Strickland, 

466 U.S. at 687. And because Diaz has failed to show deficiency, we affirm 

without addressing the issue of prejudice. See Holladay, 209 F.3d at 1248. 

II.

Diaz’s other claim is that his counsel was deficient for failing to effectively 

consult him about whether to appeal his sentence and for failing to file a notice of 

appeal. He argues that the district court erred when it rejected this claim without 

conducting an evidentiary hearing. 

We review a district court’s denial of an evidentiary hearing in a § 2255 

proceeding for an abuse of discretion. Rosin v. United States, 786 F.3d 873, 877 

(11th Cir. 2015). “A district court abuses its discretion if it applies an incorrect 

legal standard, applies the law in an unreasonable or incorrect manner, follows 

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improper procedures,” or clearly errs in making its factual findings. 

Winthrop-Redin v. United States, 767 F.3d 1210, 1215 (11th Cir. 2014).

If a defendant requests his counsel to file a notice of appeal, and his counsel 

fails to do so, then counsel has acted in a “professionally unreasonable manner.” 

Thompson v. United States, 504 F.3d 1203, 1206 (11th Cir. 2007). Further, 

“counsel generally has a duty to consult with the defendant about an appeal.” Id. 

District courts are not required to hold an evidentiary hearing in a § 2255 

proceeding where the files and records of the case conclusively show that the 

movant is not entitled to relief. 28 U.S.C. § 2255(b); Rosin, 786 F.3d at 877. 

Evidentiary hearings are also unnecessary when the movant’s allegations are based 

on unsupported generalizations or are patently frivolous. Winthrop-Redin, 767 

F.3d at 1216. However, district courts should grant an evidentiary hearing and rule 

on the merits of a movant’s claim if he alleges “reasonably specific, 

non-conclusory facts that, if true, would entitle him to relief.” Id. 

Here, Diaz has not presented sufficient evidence showing that his counsel 

failed to consult with him about his appellate rights. Rather than elaborating on 

any discussions he had with counsel, he presents only a single factual assertion in 

his affidavit: that he “was never advised by [his] previous attorneys as to the nature 

of the appeals process and what claims could be raised in . . . a direct appeal.” 

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This conclusory statement, absent any reasonably specific facts, is insufficient to 

warrant an evidentiary hearing. See Winthrop-Redin, 767 F.3d at 1216. 

Because Diaz did not present the district court with sufficient evidence 

showing that his trial counsel failed to consult with him about his appellate rights, 

he has consequently failed to show that the district court abused its discretion in 

failing to hold an evidentiary hearing. See Rosin, 786 F.3d at 877. Therefore, we 

affirm on this issue. 

AFFIRMED.

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