UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Anthony Rimas

v. Civil No. 24-cv-391-LM-AJ Opinion No.

P United States of America

ORDER

The petitioner, Anthony Rimas, moves for resentencing pursuant to

, contending that he was denied effective assistance of counsel when his

attorney failed to raise a particular argument that a cross reference within the

offense guideline pertaining to Rimas’s crime of conviction did not apply. Rimas’s

petition is presently before the court for an initial review pursuant to Rule 4 of the

Rules Governing Section 2255 Proceedings for the United States District Courts

(“2255 Rules”). For the following reasons, Rimas’s petition must be dismissed

because it is plain he is not entitled to relief.

STANDARD OF REVIEW

A prisoner serving a sentence imposed by a federal court may move the

sentencing court to vacate, set aside, or correct the sentence “upon the ground that

the sentence was imposed in violation of the Constitution or laws of the United

States, . . . or is otherwise subject to collateral attack.”

; accord

Kenney v. United States, Civ. No. 20-cv-00207-LM,

, at *1 (D.N.H.

Feb. 21, 2020). Upon filing, the court examines the petition to determine whether “it

plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the movant is not entitled to relief.” 2255 Rules, Rule 4(b). If it is

plain that the petitioner is not entitled to relief, the petition must be dismissed.

Otherwise, the court generally directs the government to respond.

BACKGROUND 1 0F

On July 20, 2021, Rimas was charged in an information with one count of

receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and (b)(1).

That same day, Rimas and the government filed a plea agreement. The plea

agreement contained a stipulated version of the facts of the offense. Rimas agreed

that, if the case proceeded to trial, the government would introduce evidence of the

stipulated facts, which would prove the elements of the offense beyond a reasonable

doubt.

Rimas stipulated that, in October 2020, he began communicating with a

person whom he believed to be a 14-year-old girl using a messaging application. In

reality, Rimas was communicating with an undercover law enforcement officer

purporting to be a minor. Rimas communicated with the officer from October 15,

2020, through at least February 3, 2021. On October 30, 2020, he asked whether

she would “stroke and suck” his penis when they met, and said “I bet you will you

are just nervous.” On February 3, 2021, he asked the undercover to send him a

picture of her naked body with her breasts and genitals exposed, and gave her

instructions for how to do so.

The following facts are derived from the record of Rimas’s criminal 1

proceeding. See United States v. Rimas, Crim. No. 21-cr-121-LM-1 (D.N.H. July 20, 2021).

2 After conducting further investigation (which yielded evidence that Rimas

asked an additional undercover officer purporting to be a 12-year-old to have sex

with him), officers obtained and executed a search warrant on Rimas’s home.

During that search, officers recovered a laptop containing over fifty files of child

pornography, including files involving infants and toddlers, and a miniature storage

device containing an additional video file of child pornography. Officers also

recovered Rimas’s cell phone, which contained at least three video files of child

pornography. Data on the phone showed that Rimas received one file on March 2,

2021, and the other two on March 9, 2021. Rimas’s phone also contained all of his

communications with the undercover officers.

On September 2, 2021, Rimas waived indictment and pled guilty to the single

count of receipt of child pornography alleged in the information. Following the

change-of-plea hearing, the parties disputed the application of a cross reference to

U.S.S.G. § 2G2.1 within § 2G2.2—the latter being the offense guideline applicable to

§ 2252(a)(2)(B). The cross reference provides that, “[i]f the offense involved causing,

transporting, permitting, or offering or seeking by notice or advertisement, a minor

to engage in sexually explicit conduct for the purpose of producing a visual depiction

of such conduct,” the court should calculate the defendant’s offense level using

§ 2G2.1 rather than § 2G2.2 if doing so would result in a greater offense level.

U.S.S.G. § 2G2.2(c)(1). Probation and the government took the position that the

cross reference applied in light of Rimas’s February 2021 conversation with the

undercover officer because that conversation involved Rimas asking a person whom

3 he believed to be a minor to send him sexually explicit images. Defense counsel

primarily argued in opposition that Rimas only asked for such a photograph after

being prompted by the undercover. The court overruled defense counsel’s objection

and applied the cross reference. Defense counsel did not meaningfully advance

another argument that the cross reference was inapplicable.

After resolving the remainder of defense counsel’s contentions regarding the

appropriate guidelines sentencing range, the court determined that Rimas’s total

offense level was 31 and his criminal history category was I, which yielded an

advisory sentencing guidelines range of 108 to 135 months. The government argued

for a low-end guidelines sentence of 108 months, and defense counsel argued for the

mandatory minimum sentence of 60 months. The court ultimately sentenced Rimas

to 108 months.

DISCUSSION

To prevail on an ineffective assistance of counsel claim, a habeas petitioner

must make a two-part showing. Strickland v. Washington,

(1984).

First, he must show “that counsel’s performance was deficient.”

To satisfy this

“performance” prong, the petitioner must demonstrate that defense counsel’s

performance “fell below an objective standard of reasonableness.”

.

“Judicial scrutiny of counsel’s performance must be highly deferential,” and courts

“indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.”

. Second, the petitioner must show

that defense counsel’s “deficient performance prejudiced the defense.”

. To

4 satisfy this “prejudice” prong, the petitioner must show a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.”

. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”

Rimas, who is proceeding pro se, argues that trial counsel was

constitutionally ineffective because he failed to argue for application of the

sentencing guideline applicable to attempt, U.S.S.G. § 2X1.1. To the extent Rimas

intends to argue that defense counsel rendered deficient performance by failing to

argue that § 2X1.1 was the offense guideline applicable to his crime of conviction, he

is incorrect. The first step in determining the applicable sentencing guidelines

range is to determine “the offense guideline section from Chapter Two (Offense

Conduct) applicable to the offense of conviction.” U.S.S.G. § 1B1.1(a)(1); see also

§ 1B1.2(a) (instructing the court to first “[d]etermine the offense guideline section in

Chapter Two (Offense Conduct) applicable to the offense of conviction (i.e., the

offense conduct charged in the count of the indictment or information of which the

defendant was convicted)”). Here, Rimas’s offense of conviction was receipt of child

pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). The offense guideline

applicable to a violation of 18 U.S.C. § 2252A(a) is § 2G2.2. See U.S.S.G. App’x A

(Statutory Index). Section 2X1.1 governs certain inchoate offenses such as attempt,

solicitation, and conspiracy. See § 2X1.1. Rimas’s offense of conviction was a

substantive offense, not an inchoate offense. Thus, to the extent Rimas argues trial

5 counsel was constitutionally deficient in failing to argue that § 2X1.1 governed his

offense of conviction, it is plain he is not entitled to relief.

Rimas fares no better to the extent he argues that counsel was ineffective in

failing to argue that the cross reference to § 2G2.2 within § 2G2.1 does not apply

when the defendant is unsuccessful in persuading a minor to produce sexually

explicit images. Section 2X1.1 makes clear that, when a defendant’s offense “is

expressly covered by another offense guideline section,” § 2X1.1 does not apply.

§ 2X1.1(c)(1). As noted, the cross reference in § 2G2.2 provides that, “[i]f the offense

involved causing, transporting, permitting, or offering or seeking by notice or

advertisement, a minor to engage in sexually explicit conduct for the purpose of

producing a visual depiction of such conduct,” the court should determine the

defendant’s offense level using § 2G2.1 rather than § 2G2.2 if doing so would result

in a greater offense level. § 2G2.2(c)(1). The Application Notes state that this cross

reference “is to be construed broadly and includes all instances where the offense

involved . . . persuading, inducing, enticing, [or] coercing . . . a minor to engage in

sexually explicit conduct for the purpose of producing any visual depiction of such

conduct.” § 2G2.2, Application Note 7.

Here, the court applied the cross reference because the undisputed evidence

showed that, on February 3, 2021, Rimas asked a person whom he believed to be a

14-year-old girl to send him a picture of her naked body with her breasts and

genitals exposed, and gave her instructions for how to do so. Therefore, Rimas

persuaded, enticed, or coerced a minor to engage in sexually explicit conduct for the

6 purpose of producing a visual depiction of that conduct, and the cross reference

applies. See U.S.S.G. § 2G2.1(c)(1); Application Note 7; see also Application Note 1

(defining “minor” to include an undercover law enforcement officer representing to

be a minor). That Rimas was unsuccessful in persuading the purported minor to

provide him with sexually explicit images does not alter this conclusion. Because

the cross reference applies, trial counsel was not constitutionally deficient in failing

to argue that the cross reference does not extend to Rimas’s undisputed conduct.

Because it is plain from Rimas’s petition and the record of his criminal

proceeding that he is not entitled to relief, his petition must be dismissed. 2255

Rules, Rule 4(b).

CONCLUSION

Rimas’s petition (doc. no. 1) is dismissed. The clerk is directed to enter

judgment and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

December 12, 2024

cc: Anthony Rimas, pro se

7