In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2010

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FREDERICK C. REZIN,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

Nos. 01-C-683-S, 00-CR-83-S—John C. Shabaz, Judge.

____________

ARGUED JANUARY 21, 2003—DECIDED MARCH 4, 2003

____________

Before POSNER, KANNE, and DIANE P. WOOD, Circuit

Judges.

POSNER, Circuit Judge. The defendant, Frederick Rezin,

pleaded guilty to possession of child pornography, 18

U.S.C. § 2252(a)(4)(B), and was sentenced to 10 years in

prison. He filed a notice of appeal but later dismissed it

and filed a motion under 28 U.S.C. § 2255 to vacate his

sentence on the ground that he had received ineffective

assistance of counsel at the sentencing hearing because

the lawyer had failed to argue against a statutory interpretation that authorized the sentence. The motion was

denied, precipitating this appeal.
2 No. 02-2010

A claim of ineffective assistance of counsel, we have said

many times, is indeed better made in postconviction proceedings than in a direct appeal from the sentence, to enable the district court to “hold a hearing, if necessary, to

learn what motivated attorneys to make the choices which

were made.” United States v. Yack, 139 F.3d 1172, 1176 (7th

Cir. 1998); see also United States v. Davenport, 986 F.2d 1047,

1050 (7th Cir. 1993); United States v. Taglia, 922 F.2d 413, 417-

18 (7th Cir. 1991). But this is in general rather than

in every case. If the claim plainly does not require any

sort of hearing to evaluate, then unless the lawyer whose

assistance is in question was the defendant’s lawyer on

direct appeal as well (for he can hardly have been expected

to accuse himself of ineffective assistance, or, for that

matter, to have noticed the oversight now claimed to

have rendered his assistance ineffective), the failure to

appeal causes the claim to be forfeited. E.g., Olmstead v.

United States, 55 F.3d 316, 320 (7th Cir. 1995); Guinan v.

United States, 6 F.3d 468, 471-73 (7th Cir. 1993); United States

v. Taglia, supra, 922 F.2d at 418. The interest in finality of criminal judgments and thus in minimizing collateral attacks upon them requires this result, unless the

defendant has a good reason, such as ineffective assistance by his appellate counsel, for being relieved from

the forfeiture. See id. at 418; Norris v. United States, 687 F.2d

899, 903 (7th Cir. 1982).

That at any rate is the rule in this circuit, and in the

Second Circuit as well. Billy-Eko v. United States, 8 F.3d 111,

115 (2d Cir. 1993). The Third and Tenth Circuits disagree, however, United States v. DeRewal, 10 F.3d 100, 103-04

and n. 2 (3d Cir. 1993); United States v. Galloway, 56 F.3d

1239, 1240-43 (10th Cir. 1995) (en banc), and the Supreme Court has now granted certiorari to resolve the

intercircuit conflict. Massaro v. United States, 123 S. Ct. 31

(2002). No matter; forfeiture can be waived, and was here,
No. 02-2010 3

so we move directly to the merits of the argument that

Rezin’s trial lawyer failed to make at the sentencing hearing.

Rezin’s maximum sentence would have been five years

had the district court not determined that he had a prior

conviction under state law for a sex crime against a minor. 18 U.S.C. § 2252(b)(2). The prior conviction was for

third-degree sexual assault, in violation of a Wisconsin

statute, against two minors. Rezin does not deny that the

victims were minors. But he points out that the Wisconsin statute does not require that the victims be minors

for the perpetrator to be guilty of third-degree assault,

and he argues that his lawyer should have argued at the

sentencing hearing that section 2252(b)(2) does not authorize additional punishment for an offense unless the victim’s age was a statutory element, whatever the facts may be.

The government argues that the lawyer had no duty to

make this argument because it’s a loser. Well, it is, as we’ll

see. But it is not the case that a lawyer can never be found

to have failed to come up to minimum professional standards for the representation of a criminal defendant by

overlooking an argument for his client that was unlikely

to prevail. Of course, if it does not prevail, then the lawyer is not guilty of ineffective assistance, because ineffective assistance requires both that the lawyer fail to come

up to minimum professional standards for the representation of criminal defendants and that the failure be prejudicial, that is, likely to have affected the outcome of

his client’s case. But suppose the argument that the lawyer failed to make, though a long shot, would have succeeded; shall his client be denied relief under section

2255 (or its counterpart for state prisoners) because it was

a long shot? In other words, is there never a duty to

make weak arguments?
4 No. 02-2010

A defendant’s lawyer has, it is certainly true, no duty

to make a frivolous argument; and there is a tactical reason not to make weak arguments (and a fortiori frivolous

ones, Evans v. Meyer, 742 F.2d 371, 374 (7th Cir. 1984),

which anyway are futile): they may distract the court

from the strong arguments and as a result make it less

likely to rule in the defendant’s favor. But if as in this

case there is only one argument that could be made on

the defendant’s behalf, and it is not frivolous, the lawyer may have a professional obligation to make it. Keys

v. Duckworth, 761 F.2d 390, 392 (7th Cir. 1985) (per curiam);

cf. Fortenberry v. Haley, 297 F.3d 1213, 1226-27 (11th Cir.

2002) (per curiam); Tejeda v. Dubois, 142 F.3d 18, 25 (1st

Cir. 1998). It is not suggested that Rezin’s lawyer had a

tactical reason not to make the argument that we are

about to examine; he could not have, since he had no

other basis for knocking five years off his client’s sentence. “The spectrum of counsel’s legitimate tactical choices

does not include abandoning a client’s only defense.” United

States ex rel. Barnard v. Lane, 819 F.2d 798, 805 (7th Cir. 1987).

There was nothing to lose and something to gain,

though only in a probabilistic sense, from making the

argument.

If, however, the argument that the lawyer fails to make

is a subtle or esoteric one—something most lawyers

would not have thought of, however conscientious they

might be—then the lawyer cannot be said to have fallen

below the minimum level of professional competence by

failing to make it, and so the claim of ineffective assistance would fail even if the argument turned out to be

a valid ground for a new trial. Criminal defendants have

a right to a competent lawyer, but not to Clarence Darrow. See, e.g., Thomas v. Gilmore, 144 F.3d 513, 515 (7th

Cir. 1998); Wade v. Franzen, 678 F.2d 56, 58 (7th Cir. 1982).

A lawyer is not to be deemed incompetent merely for
No. 02-2010 5

lacking the imagination “to anticipate arguments or appellate issues that only blossomed after defendant’s trial

and appeal have concluded,” Sherrill v. Hargett, 184 F.3d

1172, 1175 (10th Cir. 1999), though the clever lawyer would

have spotted the bud.

Some cases, such as Kurina v. Thieret, supra, 853 F.2d

at 1417, set a very low threshold indeed, by asking of the

lawyer only an awareness of “obvious” issues. We doubt

whether this was intended literally, however. In Wade

v. Franzen, supra, 678 F.2d at 58, we said that “representation permeated by serious and inexplicable errors falls

below minimum standards.” Clearly so—and perhaps a

serious error need not actually be inexplicable to convict

the lawyer of falling below the modest level of competence that the Constitution has been interpreted to require of a criminal defendant’s lawyer. Cf. United States

v. Williamson, 183 F.3d 458, 463 and n. 7 (5th Cir. 1999).

It is at least arguable in this case that a competent lawyer, lacking any other possible ground for cutting five

years off his client’s sentence, would have realized that

section 2252(b)(2) might limit “abusive sexual conduct

involving a minor” to offenses of which the victim’s

being a minor was an element, that is, something the

prosecution would have to prove beyond a reasonable

doubt in order to convict; third-degree sexual assault in

Wisconsin is not such an offense. Such arguments have

occasionally succeeded. The leading case is Taylor v.

United States, 495 U.S. 575, 601-02 (1990), and recently the

Third Circuit construed a provision materially indistinguishable from that at issue here, 18 U.S.C. § 2251(d),

which authorizes enhanced punishment if the defendant

has a prior conviction that relates “to the sexual exploitation of children,” to require that sexual exploitation of

children be an element of the offense for which he was
6 No. 02-2010

convicted. United States v. Galo, 239 F.3d 572, 576-84 (3d Cir.

2001). Galo was decided after Rezin was sentenced, but

if Rezin’s lawyer had been alert he would have made

the same argument in this case that Galo’s lawyer made

to the Third Circuit. This would not have involved predicting a change in the law; there was and is no case

directly contrary to Galo (an important qualification, however, as we’re about to see), or indeed any case interpreting

the meaning of “abusive sexual conduct involving a

minor” in section 2252(b)(2).

Even if the failure of the defendant’s trial lawyer to

make a Galo-type argument was incompetent, no remand

is necessary, because, with all due respect to our colleagues in the Third Circuit, we think that the argument,

though not frivolous, is unsound. The operative language

in section 2252(b)(2) is “a prior conviction under this

chapter, chapter 109A, chapter 117, or under the laws of

any State relating to aggravated sexual abuse, sexual

abuse, or abusive sexual conduct involving a minor or

ward, or the production, possession, receipt, mailing,

sale, distribution, shipment, or transportation of child

pornography.” “[T]his chapter” of the federal criminal code,

Chapter 110, the chapter in which section 2252 itself appears, is indeed about the sexual exploitation of children.

But Chapter 109A, “sexual abuse,” 18 U.S.C. §§ 2241 et seq.,

and Chapter 117, “transportation for illegal sexual activity and related crimes,” 18 U.S.C. §§ 2421 et seq., are

not limited to crimes against children.

The reference in section 2252(b)(2) to state laws against

“aggravated sexual abuse” and “sexual abuse” is less clear

on this point because, for obvious reasons of economy in

statutory drafting, Congress did not try to cite every state

law that it wished to make a basis for an enhanced sentence

for violating section 2252(b)(2). However, although rela-
No. 02-2010 7

tively few states use the term to define an offense, in two

that do, Illinois and New York, “sexual abuse” applies to

prohibited conduct against both adults and children. 720

ILCS 5/12-15, 5/12-16; N.Y. Penal Law § 130.55-.70. Some

states use the term “sexual abuse of minors,” but this

just confirms that the term “sexual abuse” requires a

modifier to limit it to minors. The defendant argues

that “involving a minor” in section 2252(b)(2) qualifies

not just “abusive sexual conduct” but also “aggravated

sexual abuse” and “sexual abuse.” (He does not argue,

however, that it also qualifies the enumerated federal

offenses.) The punctuation is against him, though we do

not regard that as determinative, since American standards of punctuation are notably lax. More important,

it would have been strange had Congress on the one

hand authorized heavier punishment for offenders who

had a prior federal conviction for a sexual crime whether

or not it involved a minor, and on the other hand insisted

that if the prior conviction had been for a state offense,

even one identical to one of the enumerated federal offenses, the victim had to be a minor. It would be stranger still if someone whose prior conviction did involve

abusive sexual conduct with a minor escaped the heavier

punishment because the age of the victim was not an element of the particular offense for which he was convicted.

There is no mention of elements in section 2252(b)(2), and

“prior conviction . . . relating to . . . abusive sexual conduct involving a minor” (emphasis added) is not naturally read to require that the age of the victim of the

abusive sexual conduct be a statutory element.

From the standpoint of rational penal policy, moreover,

what is important is the conduct that gave rise to the

prior conviction, not the elements of the offense underlying that conviction. Congress wanted to punish violations of section 2252 more heavily if the offender had
8 No. 02-2010

been convicted of certain crimes previously, including

abusive sexual conduct involving a minor, which is an

exact description of Rezin’s prior crime. The only reason

for not treating the crime as what it was would be if we

couldn’t be sure what it was without an evidentiary hearing. There are compelling objections to turning a sentencing hearing into a factual inquiry concerning the circumstances of a crime committed many years earlier. Cases

such as our United States v. Shannon, 110 F.3d 382, 384-85

(7th Cir. 1997) (en banc), which hold that if an evidentiary

hearing is necessary to determine a fact pertaining to

enhanced punishment (there whether the prior conviction

was for forcible rape, here whether the prior conviction

was for assault on a minor), the fact cannot be used in

determining the sentence for the defendant’s current

crime, in effect graft an additional element (!) onto statutes like section 2252(b)(2) that provide for enhanced

punishment on the basis of a prior conviction. Other circuits use a similar though somewhat less restrictive approach. See, e.g., United States v. Franklin, 235 F.3d 1165,

1169-70 and n. 5 (9th Cir. 2000); United States v. Damon,

127 F.3d 139, 147-48 (1st Cir. 1997); Emile v. INS, 244 F.3d

183, 185, 187-89 (1st Cir. 2001).

It could be argued that the language “relating to . . . abusive sexual conduct involving a minor” evinces a statutory purpose of rejecting the graft in favor of an interpretation that would catch any sex criminal who in fact had

abused a child. This would ice the case against Rezin.

But the government does not make the argument, so we

set it to one side and assume that the sentencing court is

to look first to the charging document (the indictment

or information) and to the judgment, read in light of the

statute under which the defendant was convicted. The

facts established by these documents may not be contradicted by peeking behind them to try to discover what really
No. 02-2010 9

happened. United States v. Hicks, 122 F.3d 12, 12-13 (7th

Cir. 1997). But, as these and other cases make clear, if

those documents don’t either determine or deny some

fact that is relevant to enhancement and that fact is uncontested or uncontestable and thus does not require an evidentiary hearing to establish, the court can use it in deciding on the defendant’s sentence for the current crime.

See, e.g., United States v. Alvarez-Martinez, 286 F.3d 470,

475-76 (7th Cir. 2002); Lara-Ruiz v. INS, 241 F.3d 934, 941

(7th Cir. 2001); Xiong v. INS, 173 F.3d 601, 605-07 (7th Cir.

1999). Galo does not cite Shannon or any of the cases that

follow it or explain why Congress might have wanted

us to close our eyes to the age of the defendant’s victims; it certainly didn’t say it wanted us to.

One loose end remains to be tied up. We have assumed thus far that the only pigeonhole in which to

place Rezin’s conviction for third-degree sexual assault

is “abusive sexual conduct involving a minor.” But actually

this is not clear. It could be “sexual abuse” or even, considering the age of the victims, “aggravated sexual

abuse.” There are two ways to interpret the part of section

2252(b)(2) that reads “the laws of any State relating to

aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” One is that it includes

offenses denominated by a state as sexual abuse or aggravated sexual abuse, plus other sex offenses if and only

if they involve a minor. Another is that as in the Taylor

case the statute assigns to the courts the task of defining

a “generic” offense of sexual abuse or aggravated sexual

abuse, that is, a template for determining which state

offenses shall be a basis for enhancement (“generic” rather

than specific because it would not necessarily track the law

of any particular state). The latter, the generic approach,

seems more apt here, as in Taylor, if only because most

states do not use the terminology of sexual abuse, and why
10 No. 02-2010

would Congress have wanted to disqualify convictions

for serious sex crimes in those states from use in enhancing a sentence? In any event, however the generic-specific

issue is resolved, Rezin’s prior offense fell into the residual category of abusive sexual conduct involving a minor.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-4-03