United States Court of Appeals

For the First Circuit

No. 21-1483

UNITED STATES OF AMERICA,

Appellee,

v.

KARL MESSNER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge] 

Before

Thompson, Kayatta, and Gelpí,

Circuit Judges.

Ines McGillion, with whom Ines McGillion Law Offices, PLLC

was on brief, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom 

John J. Farley, United States Attorney, was on brief, for appellee.

June 22, 2022
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THOMPSON, Circuit Judge. After pleading guilty to one 

count of possession of child pornography, Karl Messner was 

sentenced to an under-Guidelines-range sentence of 46 months. 

Invoking a narrow exception to his appellate waiver of that 

sentence, he now claims that his trial counsel was ineffective for 

failing to object on constitutional grounds to a four-level 

Guidelines enhancement. Because we conclude that the undisputed 

facts reveal Messner suffered no prejudice from any claimed 

deficient performance, we affirm.

BACKGROUND

We begin our history1 back in 2016, when the National 

Center for Missing and Exploited Children (NCMEC) got a tip from 

a website known as Chatstep.com that someone, using particular 

screennames like "janet" and "cindy," was uploading what appeared 

to be child pornography to various chat rooms on its website. 

Homeland Security Investigations got involved, and the IP (short 

for internet-protocol) addresses associated with the tips all 

linked back to one service provider in Weare, New Hampshire. When 

that service provider was subpoenaed, it forked over records 

indicating that the IP addresses were assigned to Messner. 

1 Because Messner pled guilty, we draw that history from his 

plea agreement, the undisputed sections of the presentence 

investigation report ("PSR"), and the transcripts of his changeof-plea and sentencing hearings. United States v. González, 857 

F.3d 46, 52 (1st Cir. 2017).
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After obtaining a search warrant, federal investigators 

appeared at Messner's door early one morning in October 2016. 

Still in his pajamas and bathrobe, Messner let the agents in and 

agreed to speak with them. In that conversation, Messner admitted 

that he used the internet service provider the agents had 

subpoenaed and also identified several computers in the house. 

Messner further admitted to agents that he used Chatstep to view 

child pornography, that he used various screennames on the website, 

and that he saved some unknown number of child-porn images, which 

he told investigators they would find on his laptop and thumb 

drives. Messner disclaimed any interest in touching children and 

called his viewing of the child porn a "small diversion." 

After federal investigators seized two laptops and 

several thumb drives from the home, they brought them in for 

forensic examination. On one laptop and one thumb drive, agents 

recovered fewer than 150 still images of child pornography. The 

photos were sent over to NCMEC, which reported back that 27 of the 

photos were of known minor victims. 

After the parties attempted unsuccessfully to reach a 

pre-indictment resolution of this case, a federal grand jury handed 

down a one-count indictment charging Messner with possession of 

child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). 

Messner moved to suppress the statements he gave to investigators 

on the morning of the search, but when that motion was 
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unsuccessful, Messner reached an agreement with the government to 

plead guilty. As part of that agreement, Messner agreed that he 

waived his right to appeal or collaterally attack his sentence if 

it was within or lower than the Guidelines range determined by the 

court. Tucked in there, though, was a clause allowing him to 

appeal based on new legal principles with retroactive effect or 

based on ineffective assistance of counsel.2

Following the entry of Messner's plea, things then 

turned to the U.S. Probation Office, which prepared the PSR in 

this case. As part of that report, the probation officer described

three images that were part of Messner's child-porn stash. Two 

images each depicted a naked pre-pubescent girl under the age of 

12, with each photo's focal point on the young girl's genitals. 

The third photo, the probation officer said, "depicts an adult 

male penis penetrating the vagina of a toddler-aged female." 

Messner did not object to the PSR's factual description of those 

images.

Based on the conduct depicted in the photos, the initial 

draft of the PSR applied a four-level enhancement under U.S.S.G. 

§ 2G2.2(b)(4) (without a further subparagraph notation) because 

the offense involved material that "portrays sexual abuse or 

exploitation of an infant or toddler," subparagraph (B) of that 

2 Messner also reserved the right to appeal the denial of his 

motion to suppress, but he has apparently elected not to do so. 
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Guidelines provision. Messner's first trial counsel objected to 

that enhancement,3 arguing that "the material did not portray" the 

sexual abuse or exploitation of an infant or toddler and directing 

the probation officer to the enhancement's application notes, but 

without further elaboration. But again, counsel did not object to 

the PSR's description of the nature of the photographs reviewed. 

Responding to the objection, the probation officer said that the 

four-level enhancement under § 2G2.2(b)(4) applied because one 

photo depicted an adult male penis penetrating the vagina of a 

toddler-aged female. The probation officer thus relied on the 

contention that the photo qualified as sadistic or masochistic --

subparagraph (A) of the Guidelines section. The probation officer 

made no changes to the PSR, leaving the PSR with a reference to 

§ 2G2.2(b)(4) (with no subparagraph) and the notation that the 

material portrays the sexual abuse or exploitation of an infant or 

toddler -- a nod to subparagraph (B) of the Guidelines section. 

Still, the probation officer's response invoking the sadistic-ormasochistic enhancement was submitted to the district court as an 

addendum to the final version of the PSR, which the court 

acknowledged reading. When Messner's original trial counsel 

submitted the first sentencing memorandum, he added no further 

3 Messner's initial trial counsel passed away while Messner 

was awaiting sentencing. 
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argument that the sadistic-or-masochistic enhancement would not 

apply. 

After some time passed, Messner's new trial counsel 

filed a new sentencing memorandum. In that memo, Messner's counsel 

conceded -- relying on the PSR's description of the photographs --

that "the evidence . . . supports that Mr. Messner possessed a 

single photograph depicting sexual abuse of a toddler," citing to 

the PSR's descriptions of the three photographs. At sentencing, 

Messner's counsel did not object to any of the Guidelines 

calculations, thus conceding that (at least in her view) the fourlevel enhancement under § 2G2.2(b)(4) was legally sound -- though 

she did advocate that the court should view that four-level 

enhancement as steep and thus depart or vary downward from the 

Guidelines range.

The district court ultimately took up Messner's bid to 

give him a sentence more lenient than the Guidelines recommended. 

The Guidelines range put Messner's sentence between 70 and 87 

months. The district court, however, thought that in this case 

the Guidelines over-punished based on the number of images at issue 

and therefore applied a two-level downward variance (on top of the 

two-level reduction the government had already agreed to). That 

put the adjusted Guidelines-range sentence between 46 and 57 

months, see U.S.S.G. ch. 5, pt. A (sentencing table) (2018), and 

the district court handed Messner a sentence on the bottom end of 
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that range -- 46 months in prison. That sentence was, indeed, 

within or lower than the Guidelines range determined by the court, 

so Messner's appellate waiver applies. 

Undeterred, Messner filed a timely notice of appeal and 

now, armed with new appellate counsel, seeks to shoehorn his appeal 

into the narrow exception in his appellate waiver.4

DISCUSSION

Cognizant of his appeal waiver, Messner now contends 

that his sentencing proceedings were infected by ineffective 

assistance of his counsel because counsel failed to object on 

constitutional grounds to the four-level enhancement under 

U.S.S.G. § 2G2.2(b)(4)(B). 

Under the Sixth Amendment, criminal defendants have the 

right to competent counsel at various "critical stages of a 

criminal proceeding," including (as relevant here) at their 

sentencing proceedings. Lafler v. Cooper, 566 U.S. 156, 165 

4 Technically, Messner prematurely filed his notice of appeal 

before judgment was entered. Messner's appeal of his sentence of 

imprisonment ripened, however, when judgment on that sentence was 

entered. See Fed. R. App. P. 4(b)(2) ("A notice of appeal filed 

after the court announces a decision, sentence, or order -- but 

before the entry of the judgment or order -- is treated as filed 

on the date of and after the entry."). Litigants be warned, 

though: That rule is not all encompassing, and a notice of appeal 

that jumps the gun on the judgment could potentially leave some 

yet-to-be-decided issues unappealable. See Manrique v. United 

States, 137 S. Ct. 1266, 1273 (2017) ("If the court has not yet 

decided the issue that the appellant seeks to appeal, then [Rule 

of Appellate Procedure 4(b)(2)] does not come into play.").
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(2012). In assessing a defendant's claim that counsel was 

constitutionally ineffective (and thus rose to the level of a Sixth 

Amendment violation), we follow the two-part test set out in 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Under that 

standard, a defendant must show both (1) that counsel's performance 

was deficient, and (2) that the deficient performance prejudiced 

her defense. Id. 

We measure counsel's performance under the first prong 

using an "objective standard of reasonableness." United States v. 

Ortiz-Vega, 860 F.3d 20, 28 (1st Cir. 2017) (quoting United States

v. Márquez-Pérez, 835 F.3d 153, 165 (1st Cir. 2016)). To show 

deficiency, the defendant has to fight off the strong presumption 

we apply that counsel's performance was adequate and that she "made 

all significant decisions in the exercise of reasonable 

professional judgment." United States v. Rivera-Ruperto, 852 F.3d 

1, 8 (1st Cir. 2017) (quoting Strickland, 466 U.S. at 690). 

To show prejudice in the context of ineffective 

assistance at sentencing, a defendant must show a reasonable 

probability that, but for incompetent counsel's errors, she would 

have received a lesser sentence. United States v. Grace, 367 F.3d 

29, 37 (1st Cir. 2004); see Lafler, 566 U.S. at 165 ("[I]neffective 

assistance of counsel during a sentencing hearing can result in 

Strickland prejudice because any amount of additional jail time 

has Sixth Amendment significance." (cleaned up)). By reasonable 
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probability, we mean "a probability sufficient to undermine 

confidence in the outcome." Strickland, 466 U.S. at 694. That 

doesn't mean that the defendant has to show that the deficient 

performance "more likely than not altered the outcome," but it 

does mean the defendant has to show a "substantial, not just 

conceivable" probability of a different result. United States v. 

Baptiste, 8 F.4th 30, 35 (1st Cir. 2021) (first quoting Strickland, 

466 U.S. at 693, then quoting Harrington v. Richter, 562 U.S. 86, 

112 (2011)); see Chum v. Coyne-Fague, 948 F.3d 438, 444 (1st Cir. 

2020). And in making our assessment, we remain ever mindful that 

the prejudice prong is meant "to ensure a defendant has not 

suffered a fundamentally unfair or unreliable outcome." Baptiste, 

8 F.4th at 35.

Messner bases his ineffective-assistance claim on the 

application of the four-level enhancement for material portraying 

the sexual abuse or exploitation of an infant or toddler. See

U.S.S.G. § 2G2.2(b)(4)(B). As Messner identifies, that provision 

introducing the sexual-abuse-of-a-toddler enhancement wasn't put 

into the Guidelines until November 2016 -- one month after the 

conduct he pleaded guilty to. See U.S.S.G. supp. to app. C, amend. 

801, at 133–35, 137. So, he says, applying that enhancement to 

his pre-November 2016 conduct was worthy of objection since it 

would violate ex post facto principles, see U.S. Const., art. I, 
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§ 9, cl. 3 -- something he says any reasonably competent 

criminal-defense counsel would have known.5

Now, Messner's ineffective-assistance claim debuted on 

direct appeal raises a bit of an issue. As we've made clear on 

many an occasion, we review those direct-appeal claims only 

"rarely." See, e.g., United States v. LaPlante, 714 F.3d 641, 648 

(1st Cir. 2013); United States v. Mala, 7 F.3d 1058, 1063 (1st 

Cir. 1993) (noting -- nearly thirty years ago -- that we had 

already by that point "held with a regularity bordering on the 

monotonous that fact-specific claims of ineffective assistance 

cannot make their debut on direct review"). That's so because in 

making his ineffective-assistance claim, the attack Messner must 

lodge often requires the resolution of factual issues on both 

prongs, which we courts of appeals are not adept to resolve. See

United States v. Rodriguez, 675 F.3d 48, 55–56 (1st Cir. 2012); 

Mala, 7 F.3d at 1063. 

Given that self-admitted inaptitude, we've developed 

three ways to address ineffective-assistance claims inaugurated on 

direct appeal. First, and most commonly, when the resolution of 

the claim requires further factual development, we often dismiss 

the claim without prejudice to its refiling as part of a motion 

5 "Ex post facto" is Latin for "[d]one or made after the fact" 

or "having retroactive force or effect." Ex Post Facto, Black's 

Law Dictionary (11th ed. 2019).
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under 28 U.S.C. § 2255. See, e.g., United States v. Maldonado, 

708 F.3d 38, 45–46 (1st Cir. 2013); United States v. Guerrier, 669 

F.3d 1, 9 (1st Cir. 2011). Second, we have softened that rule and 

at times said that "in special circumstances" -- such as when "the 

record is embryonic but contains sufficient indicia of 

ineffectiveness" -- we may remand the direct appeal to the district 

court for an evidentiary hearing rather than requiring the 

defendant start anew with a collateral challenge. E.g., United 

States v. Constant, 814 F.3d 570, 578 (1st Cir. 2016) (cleaned 

up); United States v. Colón-Torres, 382 F.3d 76, 84–85 (1st Cir. 

2004). And third, in those rare circumstances in which the factual 

record is clear, we have proceeded directly to reviewing the 

defendant's claim on the merits. See, e.g., LaPlante, 714 F.3d at 

648; Rodriguez, 675 F.3d at 55–56; United States v. Natanel, 938 

F.2d 302, 309 (1st Cir. 1991). But we take that seldom-traveled 

route only "where the critical facts are not genuinely in dispute 

and the record is sufficiently developed to allow reasoned 

consideration" of the claim. Natanel, 938 F.2d at 309.

As we'll turn to explain now, we agree with the 

government that route three is appropriate in this case: The 

factual record is clear enough to allow us to review Messner's 

claim, since the undisputed facts reflect that he suffered no 

prejudice from his counsel's failure to object on ex post facto
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grounds to the sexual-abuse-of-a-toddler enhancement.6 And because 

Messner has not shown a reasonable probability of prejudice, we 

take our judicial superiors' advice to jump directly to that prong, 

see Strickland, 466 U.S. at 697, and accordingly need not decide 

whether counsel's performance was constitutionally deficient.7 

Again, to show prejudice, Messner has to show that, had 

counsel objected on ex post facto grounds to the sexual-abuse-ofa-toddler enhancement, there is a reasonable probability he would 

have received a lesser sentence. See Grace, 367 F.3d at 37. But 

6 Although Messner contends the record is sufficient to 

determine he was prejudiced because of a higher-than-appropriate 

Guidelines range, he claims that we would need to engage in 

speculative factfinding to determine what would have happened had 

the government proposed to use an alternative enhancement and thus 

suggests a remand for factfinding on this prejudice prong. True, 

"the trial court, rather than the appellate court, . . . is in the 

best position to assess whether [counsel]'s decision . . .

resulted in prejudice to [the defendant]'s substantial rights." 

United States v. Ofray-Campos, 534 F.3d 1, 34 (1st Cir. 2008). 

But we may nonetheless review for prejudice on direct appeal where 

the facts are undisputed and the record lets us analyze the 

prejudice without the district court's generally helpful factual 

findings. See, e.g., LaPlante, 714 F.3d at 647–48, 650–51.

7 We note that prudent defense counsel should remain mindful 

of the Supreme Court's (and our) conclusion that -- generally --

"when a defendant is sentenced under Guidelines promulgated after 

he committed his criminal acts and the new version provides a 

higher applicable Guidelines sentencing range than the version in 

place at the time of the offense," then there is an ex post facto

violation. Peugh v. United States, 569 U.S. 530, 533, 544 (2013); 

United States v. Mantha, 944 F.3d 352, 354 (1st Cir. 2019). And 

we emphasize the caveat "generally" because readers should also be 

mindful of potential exceptions to that rule. See, e.g., Mantha, 

944 F.3d at 354–56 (detailing what Guidelines to apply when there 

are multiple related offenses spanning across different versions 

of the Guidelines).
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had Messner made that ex post facto-based objection, he would've 

run face first into subparagraph (A) of the same enhancement. 

Subparagraph (A) provides for a four-level enhancement if "the 

offense involved material that portrays . . . sadistic or 

masochistic conduct or other depictions of violence." U.S.S.G. 

§ 2G2.2(b)(4)(A) (2018). As the probation officer noted, one of 

Messner's photos depicted the penetration of a toddler's vagina by 

an adult male penis. And, as the probation officer observed, we 

held years ago that "images depicting the sexual penetration of 

young and prepubescent children by adult males" are sufficient to 

support the application of the sadistic-or-masochistic enhancement 

under § 2G2.2(b)(4)(A). See United States v. Hoey, 508 F.3d 687, 

691 (1st Cir. 2007). Messner does not contend there was a possible 

ex post facto challenge to be made to that provision, likely 

because it was clearly in effect at the time of the offense conduct 

here. See U.S.S.G. § 2G2.2(b)(4) (2016). 

Messner contends, however, that it is not at all certain

that the court would have applied the sadistic-or-masochistic 

enhancement as an alternative. 

First, Messner believes that there was "no record 

evidence" that the photograph supporting the sexual-abuse-of-atoddler enhancement also could have supported the sadistic-ormasochistic enhancement. But the record reveals otherwise. 

According to the PSR (which the district court adopted), one 
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photograph (as we just mentioned) "depicts an adult male penis 

penetrating the vagina of a toddler-aged female." Messner never 

objected to the description of that photograph below, allowing the 

court to rely on it as an undisputed fact of the case. See United 

States v. González, 857 F.3d 46, 61–62 (1st Cir. 2017); United 

States v. Orsini, 907 F.3d 115, 120 (1st Cir. 2018) ("[A] defendant 

who accepts the [PSR]'s configuration of the sentencing record can 

scarcely be heard to complain when the sentencing court uses those 

facts in making its findings." (cleaned up with new alterations 

added) (quoting United States v. Turbides-Leonardo, 468 F.3d 34, 

38 (1st Cir. 2006))); see also Fed. R. Crim. P. 32(i)(3)(A) 

(sentencing courts "may accept any undisputed portion of the 

presentence report as a finding of fact").8 What's more, Messner's 

second trial counsel conceded -- relying on the PSR's description 

of the photographs -- that the material here reflected the sexual 

abuse of a toddler. In other words, trial counsel at least agreed 

with probation's description that one photograph depicted a 

toddler, yet did not think to argue that the rest of the photo's 

description was inaccurate because it did not depict the sexual 

8 To be sure, Messner's first counsel objected to the fourlevel sexual-abuse-of-a-toddler enhancement on the ground that the 

material "did not portray the sexual abuse . . . or exploitation 

of an infant or toddler." But that objection referred the 

probation officer to the Guideline's application notes and made no 

factual qualms with the PSR's description of the photograph's 

contents. 
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penetration of a toddler. And, fatally, Messner does not contend 

that his counsel was constitutionally defective for failing to 

object to the PSR's factual description of the photograph. Based 

on that undisputed fact, Messner has not shown a reasonable 

probability that the court would have found that the sadistic-ormasochistic enhancement did not apply. 

Next, Messner also avers that neither the PSR nor the 

government relied on the sadistic-or-masochistic enhancement 

below, so it was not before the court. But he again ignores the 

record. The probation officer's responses to Messner's objections 

were included as an addendum to the final version of the PSR, which 

made clear that the probation officer believed the § 2G2.2(b)(4) 

enhancement was appropriate because there was sadistic-ormasochistic material under Hoey. And the government's first 

sentencing memorandum explicitly argued that the "sexual 

abuse/exploitation of a toddler/sado-masochistic enhancement" 

applied because of the image depicting an adult male penis 

penetrating a toddler-aged girl's vagina.9 It is thus clear that 

9 Messner also slips a two-sentence argument into his brief 

that both of his trial counsel were ineffective for failing to 

object to what he calls the government's and probation officer's 

attempt to apply both of these alternative provisions of 

§ 2G2.2(b)(4). Even if we were to assume that argument is not 

waived for lack of development, see Argencourt v. United States, 

78 F.3d 14, 16 n.1 (1st Cir. 1996), and even if we were to assume 

that the government and the probation officer weren't just trying 

to show that the enhancement applied under either ground as opposed 

to both, this ineffectiveness claim suffers the same fate under 
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both the probation officer and the government were on the same 

page: The § 2G2.2(b)(4) enhancement would apply under either 

subparagraph, and at the very least under the sadistic-ormasochistic paragraph.10

Finally, Messner contends that even if the enhancement 

applies, there is still a reasonable probability that his sentence 

would have been lower based on a store of arguments he could have 

made. He claims the district court may not have imposed a fourlevel enhancement based on a single image never produced to the 

court. But both of his trial counsel made that argument concerning 

a single image supporting the sexual-abuse-of-a-toddler 

the prejudice prong because had Messner objected on that ground, 

it is still clear that the sadistic-or-masochistic enhancement 

would have applied on its own.

10 Our no-prejudice conclusion is not inconsistent with our 

recent decision in United States v. Vélez-Vargas, 32 F.4th 12, 14–

15 (1st Cir. 2022). There, we did not permit the government on 

remand to seek a crime-of-violence enhancement based on a predicate 

felony different than the sole one advanced in the PSR below. Id. 

But there, the defendant had specifically objected to that 

predicate felony being used to support the enhancement, and the 

government did not submit alternative factual predicates in the 

face of that objection. See id. at 13–14. This case does not 

involve the failure to include additional factual predicates for 

the same enhancement in the face of an objection. Instead, it 

concerns a separate enhancement provision as an alternative to a 

provision the defendant conceded applied. And to be clear, the 

government here did cover alternatives -- its original sentencing 

memo argued the sadistic-or-masochistic enhancement would also 

apply, aligning with the probation officer's similar 

understanding. Messner's concession to the sexual-abuse-of-atoddler enhancement left the government no reason to debate at 

length the alternative, equally applicable enhancement.
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enhancement, and the district court adopted the PSR's 

recommendation to apply that four-level enhancement based 

apparently on a single image never produced to the court.11 

Continuing, he claims that defense counsel could have argued the 

four-level enhancement was too harsh since the image was carved

from the non-accessible portion of the laptop's hard-drive.12 But 

all the images described in the PSR, and the one used to justify 

the sexual-abuse-of-a-toddler enhancement, were also carved, and 

the district court was aware of Messner's position that carved 

photographs should bear less weight, yet still varied downward 

only two points. Wrapping up, Messner claims counsel could have 

argued that there was no evidence that the victim's age was 

apparent from the face of the image and that he made no admissions 

or agreements about the image's contents. But, of course and to 

repeat, Messner failed to object to the PSR's description of the 

image's contents, and his counsel even conceded that the material 

here reflected the sexual abuse of a "toddler." And, again,

11 Although Messner contends the images were never produced 

to the court, we note that nothing in the record makes clear one 

way or the other if the district court reviewed the images 

referenced in the PSR.

12 "Carved" data refers to a forensic data-mining technique 

in which tech-savvy agents can recover deleted files still existing 

somewhere in the bowels of a computer's hard drive not readily 

accessible to those without the technological know-how. See United 

States v. Davis, 859 F.3d 429, 433 (7th Cir. 2017) (recounting 

expert testimony on this subject).
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although Messner perhaps rightly contends his counsel was 

ineffective in not lodging a constitutional objection to the 

sexual-abuse-of-a-toddler enhancement, he makes no averment here

that his counsel was likewise ineffective in failing to object to 

the factual accuracy of the PSR's description of the photograph.13 

Nor, for that matter, does Messner even suggest the description 

was inaccurate.

So, the problem for Messner is that the court was already 

aware of those additional arguments. Yet, clearly unpersuaded by 

them, the court still applied the four-level enhancement. Indeed, 

the two-level variance the court gave was not based on any issue 

13 At oral argument, Messner contended that his trial counsel 

had no incentive to object to the photograph's description because 

the government could have then just substituted any number of 

photographs that depicted a toddler to suffice for the sexualabuse-of-a-toddler provision alone. But we fail to see how counsel 

was not incentivized to object to a supposedly inaccurate 

description of a photograph at the center of the crime and the 

largest Guidelines enhancement. It is not at all clear how defense 

counsel would not be incentivized to make clear to the district 

court imposing sentence that the child pornography contained in 

the defendant's case was not actually as gruesome as the PSR 

described, particularly given our case law. See Hoey, 508 F.3d at 

691 ("[I]mages depicting the sexual penetration of young and 

prepubescent children by adult males represent conduct 

sufficiently likely to involve pain such as to support a finding 

that it is inherently 'sadistic' or similarly 'violent' . . . ."). 

And given the probation officer's response that the photo justified

the sadistic-or-masochistic enhancement and the government's 

similar reliance in its sentencing memo on the sadistic-ormasochistic enhancement, that certainly incentivized counsel to 

argue that the photo was not sadistic or masochistic. But even 

original trial counsel, who objected that the photo didn't depict 

the sexual abuse of a toddler, did not do that. 
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with the harshness of the sexual-abuse-of-a-toddler enhancement --

it was based on the court's belief in the harshness of the sentence 

relative to the number of images involved. 

In all, Messner has given us no reason to see a 

reasonable probability that the district court would have given 

him a lower sentence if his counsel had objected to the sadisticor-masochistic enhancement on ex post facto grounds.14 See Peralta

v. United States, 597 F.3d 74, 82–83 (1st Cir. 2010) (per curiam) 

(no prejudice from failing to argue that a conviction would not 

have qualified as a career-offender predicate under one of the 

Guidelines provisions where it would have qualified under 

another); cf. United States v. Wainwright, 509 F.3d 812, 816 (7th 

Cir. 2007) (finding no prejudice under plain-error review for any 

erroneous application of one five-level enhancement where the 

undisputed facts reflected another five-level enhancement would 

have applied absent the original enhancement).

CONCLUSION

All said, we affirm.

14 Given our conclusion, we need not resolve the parties' 

quarrel over the potential applicability of a two-level

vulnerable-victim enhancement under U.S.S.G. § 3A1.1 if the 

sadistic-or-masochistic subparagraph had applied instead of the 

sexual-abuse-of-a-toddler subparagraph.