UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

UNITED STATES,

Plaintiff,

v.

PETER LUKASAVITZ,

Defendant.

 /

Case No. 08-20499

OPINION AND ORDER DENYING DEFENDANT’S 28 U.S.C. § 2255 MOTION

Peter Lukasavitz collected and distributed inordinately disturbing child

pornography. The government investigated and he was indicted for receiving,

possessing, and transporting this material. 18 U.S.C. § 2252A(a)(1), (a)(2)(A),

(a)(5)(B). He pleaded guilty to the count of transportation, the government dropped the

two other counts, and, as a result, Lukasavitz faced a statutory maximum sentence of

240 months’ imprisonment. At the sentencing hearing the prosecutor observed:

If the Government was adamant about some sentence higher than [240

months], by simply not dismissing the second count of his indictment, we

could have achieved a circumstance where the Court would have been in a

position to assess to him two [240-month] statutory . . . maximums

consecutively.

(Dkt. # 28 at 33.) Avoiding this possibility was, of course, a reason —and likely the

reason— that Lukasavitz accepted a plea bargain. The government recommended

lowering the sentence further, to 180 months, to account for Lukasavitz’s substantial

assistance in the investigation or prosecution of others. U.S.S.G. § 5K1.1; 18 U.S.C.

§ 3553(b)(2)(A)(iii). Facing a statutory maximum of 240 months and a sentencing
2

guidelines range of 210 to (in effect) 240 months, Lukasavitz received the substantially

lesser sentence recommended by the United States, 180 months.

Lukasavitz moves pro se for relief under 28 U.S.C. § 2255, contending that the

imposition of his plea-bargained, downward-departed, below-guidelines sentence

violated the Constitution or resulted in a miscarriage of justice. The court does not

agree. The matter is fully briefed, and no hearing is needed. See 28 U.S.C. § 2255(b).

I. BACKGROUND

Lukasavitz says he was raised in a stable home. His father is a college

professor, his mother a nurse. He suffered neither sexual abuse nor, besides his

parents’ divorce when he was seventeen, other noted trauma. He attended college,

and, although he received no degree and became a gardener, his letters and other

papers show that he is bright and articulate. He began at fourteen or fifteen to view

pornography, at eighteen to view child pornography, and at twenty-nine to trade child

pornography. At the time of his arrest, at thirty-one, he spent thirty to thirty-five hours a

week on the internet. His primary interest, he says, was pornography involving ten-toeleven year-old girls or twelve-to-fourteen year-old boys. According to a treating

therapist, he remains a sex-addict in need of treatment to increase his “impulse-control.”

Lukasavitz traded child pornography on Google Hello, a now-defunct file-sharing

program, under the name “lookingpernubbin.” Cf. Webster’s Third New International

Dictionary 1547 (1986) (“Nubbin . . . 1: something (as a fruit) that is small of its kind,

stunted, undeveloped, or imperfect.”). He was caught because he traded voluminously

with a man named Voelzke, who, during a federal investigation into child pornography

on Hello, had his computer seized by the government. A review showed that, over eight
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months, Lukasavitz and Voelzke exchanged around 970 illegal images, most of them,

around 650, sent by Lukasavitz.

The consequent seizure and search of Lukasavitz’s computer revealed him to be

an ardent and promiscuous collector and dealer of juvenile pornography ranging from

the dismally prurient to the grievously vile. On the one end, Lukasavitz had nude

photos, organized meticulously among dozens of folders, of girls of eight to eleven; on

the other, he had depictions of children and sexual bondage, children and bestiality,

even the violent sexual assault of a two-year-old. Lukasavitz frequently chatted online

with other collectors. Several times, in similar terms, he told a story, disclaimed now as

fantasy, of his sexual abuse of an eleven-year-old boy. He expressed his desire to

molest a “little girl.”

After agreeing to cooperate with the government, Lukasavitz pleaded guilty to

one count. His trafficking child pornography (offense level 22), U.S.S.G. § 2G2.2(a)(2),

combined with his distributing a thing of value (5), § 2G2.2(b)(3)(B), on a computer (2),

§ 2G2.2(b)(6); his possessing images depicting sadism (4), § 2G2.2(b)(4), as well as

children under twelve (2), § 2G2.2(b)(2); and his possessing more than 600 images (5),

§ 2G2.2(b)(7)(D), produced an offense level of 40. He received a three-level reduction

for accepting responsibility for his offense, § 3E1.1, leaving a final offense level of 37,

which, with a criminal history category of I (i.e., no criminal history), suggested a

sentence of 210 to 262 months in prison, a range that the statutory maximum, 18 U.S.C.

§ 2252A(b)(1), capped at 240 months. Helping federal authorities pursue other

offenders earned him a motion from the government requesting a below-range sentence

of 180 months. 18 U.S.C. § 3553(b)(2)(A)(iii).
4

At his sentencing hearing, Lukasavitz confirmed that his counsel and he had

discussed carefully the plea agreement. Then defense counsel argued for a sentence

below even the government’s lenient recommendation; she proposed the unfairness of

the sentencing guidelines, which had produced a sentencing range around the statutory

maximum; she observed that Lukasavitz had never sold pornography for profit; she tried

to distinguish cases cited by the government, and she raised cases in which, she

claimed, a defendant like Lukasavitz was granted lenience; she emphasized his

progress in therapy, the support of his family, the quality of his cooperation with the

state, and the purported eloquence and sincerity of a letter he wrote to this judge. 

The prosecutor argued his counterpoints: the seriousness of the crime, the

soundness of his authorities, the restraint shown by the government, and the need to

deter those who barter in a vast and lamentably durable market for child pornography. 

Lukasavitz received 180 months’ imprisonment. The plea agreement barred a direct

appeal of a within- or, as it happened, below-guidelines sentence.

II. STANDARD

Under 28 U.S.C. § 2255(a), a prisoner may seek to alter a sentence that “was

imposed in violation of the Constitution or laws of the United States,” that “the court was

without jurisdiction to impose,” that “was in excess of the maximum authorized by law,”

or that “is otherwise subject to collateral attack.” To receive relief under § 2255(a), a

prisoner must establish that a constitutional error caused injury, Watson v. United

States, 165 F.3d 486, 488 (6th Cir. 1999), or that another error caused a blatant

miscarriage of justice, Jamieson v. United States, 692 F.3d 435, 439 (6th Cir. 2012).

 III. DISCUSSION
5

A. Ineffective Assistance of Counsel

Lukasavitz contends that his offense level was miscalculated, that both his 

progress in therapy and a report by his therapist should have earned him a lower

sentence, that the sentencing guidelines treat child pornography offenders too harshly,

and that the court displayed bias. These are the sort of issues that a defendant must

either raise on direct appeal or waive, Grant v. United States, 72 F.3d 503, 506 (6th Cir.

1996); and, accepting both the benefits and the burdens of a plea agreement,

Lukasavitz waived his direct appeal. To the extent he tries to raise his issues directly,

he rearranges the terms of his plea agreement to retain the benefit and discard the

burden. That he may not do. Accord Clinkscale v. United States, 367 F.Supp.2d 1150,

1157 (N.D. Ohio 2005) (citing Weinberger v. United States, 268 F.3d 346, 351 (6th Cir.

2001)); see also United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995). He may,

however, raise most of his issues indirectly, by claiming ineffective assistance of

counsel. Weinberger, 268 F.3d at 351. He insists throughout his motion that his

counsel was ineffective.

To establish ineffective assistance, Lukasavitz must show both that his attorney’s

performance failed to meet the minimum professional standard and that the poor

performance harmed him. Strickland v. Washington, 466 U.S. 668 (1984). Lukasavitz

argues that he suffered harm because, in the absence of his counsel’s errors, both his

guidelines range and his sentence might have been lower. Under Hill v. Lockhart, 474

U.S. 52, 59 (1985), however, a defendant who pleaded guilty must show that, with more

competent counsel, he probably “would not have pleaded guilty and instead would have

insisted on going to trial.” Although Hill involved a defendant who claimed that
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ineffective assistance produced the guilty plea itself, Short v. United States, 471 F.3d

686 (6th Cir. 2006), says that Hill governs even if the defendant acknowledges his guilt

but argues that ineffective assistance damaged his plea bargain and raised his

sentence. 471 F.3d at 696-97 (“[T]he petitioner’s claim of prejudice rests upon an

assertion that he wound up with a less favorable plea or sentence than he otherwise

would have accepted with the advice of competent counsel. Such a claim is insufficient

to establish actual prejudice.”); see also Bethel v. United States, 458 F.3d 711, 720 (7th

Cir. 2006) (“Under Hill and its progeny, a claim that a defendant would not have entered

this particular plea agreement is not sufficient to show prejudice.”).

Lukasavitz must therefore show that, without the purportedly deficient advice of

counsel, he would have proceeded to trial. But the government agreed to drop counts

that could have more than doubled Lukasavitz’s sentence. It agreed to an offense-level

reduction for Lukasavitz’s apparent contrition and for his cooperation, and, for his

substantial assistance, it agreed to seek an additional reduction, to below the guidelines

range. Perhaps most importantly, it implicitly agreed not to expose a jury—or the

sentencing judge—to a full display of the evidence at the core of the case. The court

explained at the sentencing hearing:

This is, by the way, a very antiseptic way of proceeding in this case. There

has not been a trial. I have not seen one of these images. I’ve only heard

them described in words by [the prosecutor]. And I’m highly agitated at the

behavior simply from the descriptions. Think how much more impact there

would be upon a sentencing judge if he were to have actually . . . been

. . . exposed to the fruits of Mr. Lukasavitz’s behavior over the past . . . years.

It might provide some insight as to why it’s perhaps strategically wise for a

defendant to enter a plea of guilty, rather than contesting these matters and

exposing his behavior in full bloom to the judge who ultimately may be

responsible for sentencing him.
7

(Dkt. # 28 at 40.) Given the options available, the circumstances of the plea agreement

were, for Lukasavitz, entirely clear and eminently advantageous.

A plea bargain would have been best for Lukasavitz no matter what. Had he

received both the guidelines calculation and the weighting of sentencing factors to which

he says he was entitled, his agreeing to plead guilty would have been more, not less,

rational. His § 2255 motion fails; he must abide by his plea agreement, which, all things

considered, treats him quite favorably.

In any case, there is no merit to Lukasavitz’s complaints about his sentence.

B. The Guidelines Calculation

Lukasavitz challenges the offense-level enhancements he received for using a 

computer and for possessing more than 600 images, and he asserts his entitlement to

an offense-level reduction for his purportedly minor role in his offense.

Lukasavitz was convicted of “knowingly . . . transport[ing] . . . using any means

. . . of interstate . . . commerce . . , including by computer, . . child pornography.” 18

U.S.C. § 2252A(a)(1). And he received a two-level enhancement because his offense

“involved the use of a computer . . . for the . . . transmission . . . of the material” in

question. U.S.S.G. § 2G2.2(b)(6). He argues that he was wrongly punished twice for

using a computer. See United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010). 

The computer, however, was incidental, an optional mechanism in the commission of

the underlying offense. If Lukasavitz had mailed the child pornography, or sent it by

some other means, he would have committed the same crime. Congress chose to

clarify, in the statute, that a computer can send something to another state, but that

does not make the use of a computer an element of the offense. The offense consists
8

only of knowingly sending child pornography in a manner that engages interstate

commerce. By doing those things, Lukasavitz earned the base offense-level attached

to 18 U.S.C. § 2252A(a)(1). By doing them on a computer, he earned the separate

enhancement in U.S.S.G. § 2G2.2(b)(6).

U.S.S.G. § 2G2.2(b)(7)(D) imposes a five-level enhancement for an offense

involving more than 600 images. Lukasavitz raises several ways the government might

have over-counted images, including by counting thumbnails, by counting images that

were never transported, and by over-counting videos (which qualify, under § 2G2.2

comment 4, as 75 images). The big problem with this speculation is that, according to

the pre-sentence report, Lukasavitz sent around 650 images of child pornography to

Voelzke alone. Although he lists ways that images can be miscounted, Lukasavitz

provides no reason to suspect that the government miscounted in this instance. See

United States v. Wright, 464 F.App’x 475, 482 (6th Cir. 2012). Better evidence is

absent only because Lukasavitz agreed to plead guilty. If he had any actual doubt, he

could have asked during the plea bargaining to confirm the government’s count. It

appears he has instead tried to play possum.

Under U.S.S.G. § 3B1.2, a defendant may earn a two- or four-level reduction by

showing he played a “minor” or “minimal” role in the species of crime at issue. 

Lukasavitz says a thorough review might show that, when he traded with Voelzke, he

received more sadistic material than he sent. Even if Lukasavitz is correct (nothing

suggests he is), his argument fails on its own terms. He sent to Voelzke twice the

volume of material he received, and, because he traded in a diffuse network, comparing

him to only one person makes no sense. Moreover, his argument misses the point. 
9

“The issue is whether . . . [the] defendant played a part that is substantially less culpable

than the average participant in similar crimes,” not whether the defendant “was less

involved than those who acted with [him.]” 21 Am. Jur. 2d Criminal Law § 800 (2013). 

There is, indeed, no reason to treat a 50-image trader in a 10,000-image conspiracy

less harshly than a 50-image trader in a 100-image conspiracy. Lukasavitz never

argues that he is plainly less culpable than the average trader of child pornography.

The offense level was calculated correctly.

C. Psychological Evaluations

Lukasavitz’s counsel submitted a letter from one therapist and a report from

another. The letter described Lukasavitz’s progress in therapy, and the report stated

that Lukasavitz will probably not commit another offense. Lukasavitz contends that both

the letter and the report should have compelled a lower sentence. 

The letter identifies a defendant’s ordinary effort, in the aftermath of his arrest, to

attend therapy. Lukasavitz attended therapy because he accepted responsibility for his

crime, and, because he accepted responsibility, he earned an offense-level reduction. 

His sentence therefore accounts for his therapy. See U.S.S.G. § 3E1.1 cmt. n.1(g);

United States v. Donnelly, 475 F.3d 946, 956 (8th Cir. 2007).

The report is curious. It notes that Lukasavitz told several people “the exact

same story” of his “receiv[ing] oral sex from an eleven-year-old,” that he “admitted to

viewing pornographic material at a young age,” and that he displays “voyeuristic

pedophilia” and sex addiction; it says that Lukasavitz needs therapy “sensitizing him to

the . . . consequences of sexual abuse” and “focus[ing] on denial and minimization

issues, arousal reconditioning,” “skills to manage . . . sexual addiction,” and “relapse
10

prevention”; and yet it claims Lukasavitz “is currently at a low-risk to re-offend sexually.” 

It provides no reasons why he is safe; it states merely that he scored low on the

“Vermont Assessment of Sex-Offender Risk.”

The federal case law contains only a couple passing references to the “Vermont

Assessment.” According to its creators, it is still “an experimental instrument” that “is

best used as a decision aid along with professional judgement and other appropriate

tools.” Robert McGrath & Stephen Hoke, Vermont Assessment of Sex Offender Risk

Manual 1 (2001), http:// www.csom.org/ pubs/ VASOR.pdf (visited Mar. 7, 2013). So it

appears to the court that Lukasavitz’s therapist should not have replaced independent

analysis with a bare appeal to the authority of the test. Moreover, many of the scoring

factors in the “re-offense risk” part of the test, such as “force used during current

offense” and “relationship to the victims,” pertain only to a defendant who has

committed a “hands-on” sexual offense, see McGrath & Hoke 9-13; the test thus

appears to treat sexual offenders not in this category leniently. In fact, a look at the

pertinent scoring grid reveals that almost any score will qualify a defendant as a “low

risk” of committing a new offense. The test’s creators provide this candid explanation:

The upper level of the ‘low’ risk section that extends vertically [to near the

top] of the scoring grid is designed to identify non-contact sex offenders

whose risk to reoffend may be high but who have no history of hands-on

sexual offending or other violent behavior.

McGrath & Hoke 2 (emphasis added); see also id. (noting that ninety percent of the

test’s study sample were “hands-on” offenders). The Vermont Assessment is not

designed to predict whether someone arrested for trading child pornography will trade

child pornography again. The therapist’s report is not useful.
11

Lukasavitz raises an alternative argument, that his counsel should have asked a

therapist to testify or should have sought the opinion of another expert. A licensed

practitioner typically enjoys a presumption of competence, see Fautenberry v. Mitchell,

515 F.3d 614, 625-26 (6th Cir. 2008), and neither the letter nor the report display an

obvious defect that no effective attorney would miss. As for neither expert’s testifying,

counsel made a routine and proper tactical decision to herself promote the letter and the

report. Her defense of Lukasavitz sufficed. Further, even if it did not suffice, Lukasavitz

fails to show that a better expert could get him a lower sentence. First, it is not clear

how much the average therapist can really say about the odds that a defendant will

return to child pornography. “Statistical analysis of sex crimes has shown that the best

predictor of recidivism is not deportment at an interview but sexual interest in children.” 

United States v. Garthus, 652 F.3d 715, 720 (7th Cir. 2011) (Posner, J.). And second,

as will be discussed next, a sentencing judge need not fixate on incapacitating the

dangerous.
12

D. The Sentencing Guidelines

Lukasavitz faults his counsel for not raising an influential article, Deconstructing

the Myth of Careful Study: A Primer on the Flawed Progression of the Child

Pornography Guidelines, in which a federal public defender, Troy Stabenow, states that

the penalties for child pornography offenses arise not from “sound research,” but

instead from “morality earmarks, slipped into larger [congressional] bills . . , often

without notice, debate, or empirical study[.]” Stabenow 3.

During the sentencing hearing Lukasavitz’s counsel argued, among other things,

the unfairness of the guidelines, which, she said, unreasonably treated Lukasavitz the

same as a defendant who sold child pornography for money. Both sellers and traders

sustain the market and perpetuate the victimization of the children depicted, so

counsel’s argument failed. But Lukasavitz enjoyed vigorous representation, and he

cannot succeed now arguing that, in hindsight, his attorney should have added to her

argument a specific article. Counsel is obligated to provide a defendant such as

Lukasavitz at least a competent defense, but not necessarily a masterly one. There will

almost always be another article, another law review note, another policy paper that an

attorney could have (and, a defendant will later think, should have) raised.

In any event, Lukasavitz fails to show that the Stabenow article could have

helped lower his sentence. The guidelines ranges for child pornography offenses have

increased recently because of brisk legislating by the elected branches of government. 

See generally United States v. McNerney, 636 F.3d 772, 775-78 (6th Cir. 2011). The

Stabenow article disapproves of Congress’s influencing the sentencing guidelines and,

based on legislative history, proclaims that Congress did not deliberate enough before
13

increasing child-pornography sentences. See Stabenow 17-26. A sentencing judge,

however, may not be so critical of democratic influence on the decisions of Congress,

may decline to question the quality of congressional debate, and may decline to lightly

dismiss Congress’s comprehensive power to set criminal sentences. A sentencing

judge may, in other words, reject the article’s critique unreservedly. See Garthus, 652

F.3d at 721.

Title 18 U.S.C. § 3553(a) tells the sentencing judge to consider the accepted

ends of penology—punishment, deterrence, and public safety—and several other

factors. United States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552

U.S. 85 (2007), and other recent Supreme Court decisions allow the sentencing judge

to apply the factors in Section 3553(a) in any reasonable manner. This means that a

sentencing judge may reject a guidelines range as conflicting with the judge’s

penological philosophy, see United States v. Herrera-Zuniga, 571 F.3d 568, 585 (6th

Cir. 2009), but it means also, of course, that a sentencing judge may affirm a guidelines

range as salutary public policy. He may, for example, decide that no amount of “sound

research” can discover objectively ideal ranges of sentences—an illusive balancing of

the competing ends of incarceration—but that in a given instance, in accord with the will

of Congress, the pertinent guidelines range is justified by the need to deter the type of

crime and the criminal. And the court said just that in this case:

[The] deterrence of criminal conduct, societally and to the individual, is one

of the inordinately important points in favor of sentencing harshly . . . in

crimes of this nature. I believe the community of purveyors of child

pornography to be in touch with each other. It is a defined community, and

a community that interacts and that may perhaps respond when sentences

of the kind suggested and calculated here are in fact imposed.
14

(Dkt. # 28 at 41-42.) Cf. O.W. Holmes, The Common Law 46-76 (Dover 1991) (“There

can be no case in which the law-maker makes certain conduct criminal without his

thereby showing a wish and purpose to prevent that conduct. Prevention would

accordingly seem to be the chief and only universal purpose of punishment.”).

Deterrence matters. “Young children were raped in order to enable the

production of the pornography” that Lukasavitz “both consumed himself and

disseminated to others.” Garthus, 652 F.3d at 721-22. “The logic of deterrence

suggests that the lighter the punishment for downloading and uploading child

pornography, the greater the customer demand for it and so the more will be produced.” 

Id. If anything, Lukasavitz’s extensive participation in the market for child pornography

warranted more than the below-guidelines sentence Lukasavitz received. His

complaints about his sentence fail. Cf. United States v. Overmyer, 663 F.3d 862, 863,

865 (6th Cir. 2012) (affirming a child pornography sentence) (“[The district court]

explain[ed] that it agreed with the severity of the child-pornography sentencing

guidelines . . . . In cases where the district court and the sentencing commission

independently agree about an appropriate sentencing range, . . . it will be difficult to

establish that the sentence is unreasonable.”); United States v. Zauner, 688 F.3d 426,

429 (8th Cir. 2012) (affirming a child pornography sentence) (“When a district court

varies downward from a presumptively reasonable guideline sentence, . . . it is nearly

inconceivable that the court abused its discretion in not varying downward still further.”).

E. Alleged Bias

Lukasavitz claims that the court displayed bias at the sentencing hearing. The

court used “horrific,” and other strong terms, to describe Lukasavitz’s offense. (Dkt.
15

# 28 at 48.) The court, Lukasavitz says, “le[ft] no harsher language for the more serious

offenses of child pornography production and . . . [for] ‘hands-on’ crimes against

children.” (Dkt. # 33 at 14.) Lukasavitz has come across an insight about the limited

nature of language, not a sign of the mild nature of his conduct. Indeed, his father said

he was “shocked and appalled” by his son’s behavior, and Lukasavitz himself wrote of

“the horror” of what he did.

“Anger and pity . . . may be felt both too much and too little . . ; but to feel them at

the right times, with reference to the right objects, towards the right people, with the

right motive, and in the right way, is what is both intermediate and best, and this is

characteristic of virtue.” Aristotle, Nicomachean Ethics, bk. II, ch. 5 (W.D. Ross transl.

1908). Lukasavitz, at his sentencing, received a calm, measured but firm reaction to the

record and the conduct at hand.

IV. CONCLUSION

Peter Lukasavitz accepted a favorable plea agreement, and, in consequence, 

he waived an appeal. Because he would not, if rational, have rejected the favorable

plea agreement under any remotely possible circumstance, he may not question his

attorney’s performance. And if he could question her performance, or his sentence, his

efforts would fail on the merits. Accordingly,

IT IS ORDERED that the 28 U.S.C. § 2255 motion [Dkts. # 23, 33] is DENIED. 

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: April 19, 2013
S:\Cleland\JUDGE'S DESK\C2 ORDERS\08-20499.LUKASAVITZ.2255.ckb.RHC.2.wpd

16

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, April 19, 2013, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522