The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
SAN ANGELO DIVISION
JOSHUA PAUL COX,
Petitioner,
v. Civ. No. 6:21-CV-065-H-BU
C r. No. 6:20-CR-016-H-BU-1
UNITED STATES OF AMERICA,
Respondent.
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATIONS OF THE MAGISTRATE JUDGE, AND
DENYING PETITIONER’S AMENDED SECTION 2255 MOTION
Before the Court are the Report and Recommendations of United States Magistrate
Judge John R. Parker and the petitioner’s objections. Civ. Dkt. Nos. 51; 54. The Report
and Recommendations recommend denying both grounds of the petitioner’s amended
motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Civ. Dkt. No. 51 at 3. The
petitioner objects to findings regarding his ineffective-assistance-of counsel-claim for failing
to object on certain grounds to the distribution enhancement under USSG § 2G2.1(b)(3).
Civ. Dkt. No. 54. Specifically, he argues that there was insufficient evidence to find that the
images were sexually explicit, that the distribution was not relevant conduct, and that he
was prejudiced by the failure to object. Id. at 6–28.
The Court overrules the petitioner’s objections. Based on the information known to
the petitioner’s counsel, he was not constitutionally deficient by not raising these objections.
In addition, the petitioner has not shown a reasonable probability of a different sentence had
these objections been raised. Accordingly, the Court denies the petitioner’s amended
motion to vacate his sentence and dismisses this civil action with prejudice. Civ. Dkt. No.
23. The petitioner’s original motion (Cr. Dkt. No. 55; Civ. Dkt. No. 1) is denied as moot.
1. Factual and Procedural Background
A. Cox’s Conviction and Sentencing
In 2021, the petitioner Joshua Cox pled guilty to Count One of a four-count
indictment. Cr. Dkt. Nos. 1; 35; 36. Count One charged Cox with production of child
pornography in violation of 18 U.S.C. § 2251(a). Cr. Dkt. No. 1. This charge, and the
others in the indictment, stemmed from an extended online relationship between Cox and a
minor female, Jane Doe. Doe was 12 years old when she met Cox online. Civ. Dkt. No.
14-1 at 3. They communicated for several years over various social media platforms and by
phone. Id.
At some point, Doe began sending Cox numerous sexually explicit images and
videos of herself at his request. Id.; Cr. Dkt. No. 38-1 at 8–9. Doe told investigators that
once she started sending these images, “she could not stop it from continuing . . . because
Cox would threaten to send the pictures out to everyone [she] knows.” Civ. Dkt. No. 14-1
at 3. On at least one occasion, Cox carried out this threat and sent some of the images of
Doe to another person, Doe’s former boyfriend. Id. Doe learned that the images had been
sent because the recipient informed her sister. Id. When agents searched Cox’s phone, they
located 658 images of Doe’s “vagina, anus, and breast” as she “perform[ed] multiple sex
acts,” as well as 74 videos of Doe “removing her clothes and masturbating.” Cr. Dkt. No.
38-1 at 9–10.
The Presentence Investigation Report (PSR) prepared for Cox’s sentencing applied a
two-level adjustment under USSG § 2G2.1(b)(3) for distributing sexually explicit material.
Id. at 11. In justifying the application of the enhancement, the PSR cited Cox’s factual
resume and stated that “the defendant admitted to sending the sexually explicit images of
[Doe] to a male that [Doe] was dating.” Id. Regarding this distribution, Cox’s factual
resume stated:
Doe did not remember when she began sending the sexually explicit
photographs to Cox, but that once it started, she could not stop because Cox
threatened to send the photographs to her family and friends. Cox sent nude
images of Doe to a boy who lived across the street from Jane Doe 1 because
Doe was dating him.
Cr. Dkt. No. 30 at 4. With this enhancement, Cox had a total offense level of 40 and his
criminal history category was II, resulting in an advisory guidelines range of 324 to 360
months’ imprisonment.1 Cr. Dkt. No. 38-1 at 19.
In preparation for sentencing, Cox’s sentencing counsel, Fred Brigman, filed several
objections, including an objection to this distribution enhancement. Cr. Dkt. No. 43.
Brigman argued that the distribution enhancement should not apply because Cox “sent the
image of [Doe] to a male that [Doe] was dating, but he did not post it on a public website
for public viewing.” Id. at 1. At Cox’s sentencing, the Court overruled this objection and
sentenced him to 324 months’ imprisonment. Cr. Dkt. No. 61 at 6, 14. Cox did not file a
direct appeal.
B. Postconviction Proceedings
i. Cox’s Motions to Vacate
Cox’s original motion to vacate asserted one claim—ineffective assistance of counsel
for failing to file an appeal. Cr. Dkt. No. 55 at 4; Civ. Dkt. No. 1 at 4. The government
filed a response to Cox’s motion that requested an evidentiary hearing on his claim. Civ.
Dkt. No. 6. The Court then referred this matter to Magistrate Judge Parker for an
1 Cox’s guidelines range was capped at 360 months due to the statutory maximum sentence. Dkt.
No. 38-1 at 19.
evidentiary hearing and to issue a report and recommendations. Civ. Dkt. No. 7. Counsel
was appointed for Cox. Civ. Dkt. No. 8.
Cox’s Section 2255 counsel filed the present amended motion to vacate, adding an
additional ineffective assistance of counsel claim. Civ. Dkt. No. 23. Specifically, the new
claim argues that Cox’s sentencing counsel was ineffective for failing to challenge the
distribution enhancement on two additional bases: (1) that there was no evidence to show
that the distributed images contained sexually explicit conduct; and (2) that the distributed
images were not relevant conduct. Id. at 7. The government argues that this claim is
meritless. Civ. Dkt. No. 31.
ii. Proceedings before the Magistrate Judge
Magistrate Judge Parker held an evidentiary hearing on Cox’s amended motion on
August 17, 2022, where Cox and Brigman testified regarding Cox’s claims. See Civ. Dkt.
Nos. 46; 49. Regarding his challenge to the distribution enhancement, Cox claimed that the
phone seized by the government did not contain the distributed images. Civ. Dkt. No. 49 at
21. He testified that he had destroyed the phone with the images at some point prior to his
arrest and no longer had the images. Id. at 21, 39. He further stated that Brigman had never
asked him about the content of the photos, what Doe was doing in the photos, or what parts
of her body could be seen. Id. at 20, 33–34. Cox claimed that the distributed image was “a
picture of her in her bra from the waist to her neck,” despite having agreed to the factual
resume stating that Doe was nude in the images. Id. at 37–39; Cr. Dkt. No. 30 at 4. Cox
stated that he had sent the photos in November 2015. Civ. Dkt. No. 49 at 20.
Brigman testified that he thought an objection to the distribution enhancement on
the basis that the images were not relevant conduct or did not contain sexually explicit
conduct would have been “frivolous.” Id. at 81. He admitted that nothing in the defense
file identified the distributed images or described the content of those specific images. Id. at
73–74. However, he noted that he had reviewed the images that the government had in its
file and that he “didn’t see anything that wasn’t sexually explicit.” Id. at 80–81. Brigman
testified that he had no reason to believe that the distributed images “were any different than
the 600 sexually explicit images [Cox] had on his phone.” Id. at 80. He also noted that he
could not remember if anything in the file had identified when the images were distributed.
Id. at 73–74. Brigman further explained that he thought any objection to the distribution
enhancement besides the one he made at Cox’s sentencing would have risked losing the
three-point reduction for acceptance of responsibility because it would have been seen as
challenging the factual resume. Id. at 82, 90–93.
Following the evidentiary hearing, Judge Parker issued a Report and
Recommendations (R&R), recommending that Cox’s amended motion be dismissed. Civ.
Dkt. No. 51. Regarding Cox’s failure to appeal claim, the R&R found that Cox had failed
to reasonably demonstrate his interest in appealing to Brigman. Id. at 73. In addition, it
recommended finding that Cox lacked sufficient evidence to show that a rational defendant
in his circumstances would have filed an appeal. Id. at 77–78.
As for Cox’s claim that his counsel should have raised additional challenges to the
Section 2G2.1(b)(3) enhancement, the R&R first rejected Cox’s argument that it was
unreasonable for his attorney to not object on the basis that the images were not sexually
explicit. Id. at 25–32. The R&R found that Brigman’s inference that the distributed images
were sexually explicit was reasonable in light of the numerous sexually explicit images of
Doe that had been found on Cox’s phone. Id. at 29–30, 42–46. It noted that strong
circumstantial evidence supported finding that the images were sexually explicit. Id. at
28–31. Further, the R&R stated that “there is no reason to believe that, if challenged on this
point, the [g]overnment could not have presented evidence of the images’ sexually explicit
nature either through the agent, through Jane Doe 1, through her sister (to whom the
boyfriend showed the images), or through the boyfriend who received the images.” Id. at
31.
In addition, the R&R found that the images constituted relevant conduct. Id. at
32–41. The R&R proposed two bases for finding that the images were relevant conduct.
First, the images could be considered conduct by Cox in preparation for the offense: Cox
obtained images of Doe due to his threats of sending the photos to her friends and family,
and this act of distribution helped to coerce her to send more images under the continuous
threat that he would send more if she stopped. Id. at 35–38. Second, the images were
distributed during the course of the offense of Cox’s conviction because Cox’s sexual
exploitation of Jane Doe was continuous for years after he first received explicit images
from her. Id. at 38–41.
Finally, the R&R found that Cox had failed to show that he was prejudiced by any
failure to object. Id. at 46–58. Specifically, the R&R determined that the Court at
sentencing made clear that it was imposing Cox’s sentence based on factors independent of
the calculated guidelines range, namely, “the disturbing and repetitive nature of Cox’s
crimes.” Id. at 52–54, 58.
iii. Cox’s Objections
Cox’s objections solely address the R&R’s findings regarding the distribution
enhancement and argue that the R&R errs on both prongs of the ineffective-assistance-of-
counsel test. Civ. Dkt. No. 54. He first contends that the evidence only supports a finding
that the distributed images were nude, not sexually explicit, and without the images
themselves, there is no reliable way that the Court could have determined whether the
images were sexually explicit. Id. at 8–15. Accordingly, he argues, it was unreasonable for
his attorney to not object on this ground, and the mere possibility that the government could
have provided additional evidence to support its burden does not justify failing to object. Id.
at 7, 15–17.
Regarding the relevant-conduct findings, Cox asserts that the distribution was not
“preparation for the particular image named in the indictment.” Id. at 19. He contends that
he needed to have these particular images in mind at the time he committed the distribution
in order for it to count as “in preparation for” his offense of conviction, particularly given
the amount of time between the distribution and the offense conduct. Id. at 20–21. As for
the distribution occurring during the offense of conviction, he argues that “[t]he lengthy gap
between the distribution and the acquisition of the indicted image makes it very unlikely
that [he] intended to create that image when he undertook the distribution.” Id. at 21–22.
Finally, Cox contends that there is a reasonable probability that he would have
received a different sentence had his counsel objected to the enhancement on either of these
bases. Id. at 23–28. He notes that the Court did not say that it would have imposed the
same sentence regardless of the guidelines range. Id. at 26–27. And he argues that the
Court’s explanation of the sentencing factors could have supported a lower sentence and
that the Court’s choice of the bottom end of the guidelines range suggests that a lower range
could have resulted in a lower sentence. Id. at 24, 26–28.
2. Legal Standards
A. Review of Magistrate Judge’s Report and Recommendations
When a party files objections to a magistrate judge’s recommendations, the Court
must review those objected-to portions de novo. Kreimerman v. Casa Veerkamp, S.A. de C.V.,
22 F.3d 634, 646 (5th Cir. 1994); 28 U.S.C. § 636(b)(1). However, as for portions where no
specific objections are filed within the 14-day period, the Court reviews the Magistrate
Judge’s report and recommendations only for plain error. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), superseded by statute on other grounds, 28 U.S.C.
§ 636(b)(1); Serrano v. Customs & Border Patrol, U.S. Customs & Border Prot., 975 F.3d 488, 502
(5th Cir. 2020).
The District Court has reviewed the unobjected-to portions of the Report and
Recommendations for plain error. Finding none, the Court accepts and adopts those
portions of the Report and Recommendations.
B. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel can be asserted in a Section 2255 motion
even if the petitioner did not raise that claim on direct appeal. Massaro v. United States, 538
U.S. 500, 503–04 (2003). To prevail on such a claim, the petitioner must demonstrate that
his “counsel’s representation fell below an objective standard of reasonableness” and that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694
(1984). In resolving an ineffective-assistance claim, the Court’s review “must be highly
deferential” because “it is all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689. There is “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,” and a petitioner “must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Defense counsel “has wide latitude in deciding how best to represent a client,” which may
include choosing to bring some arguments to the exclusion of others. Yarborough v. Gentry,
540 U.S. 1, 5–8 (2003). A mere challenge to the attorney’s strategy or choice of certain
theories does not establish ineffective assistance of counsel. Coble v. Quarterman, 496 F.3d
430, 437 (5th Cir. 2007).
The Court “must judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S.
at 690. If counsel’s decision was a “strategic choice[] made after thorough investigation of
law and facts relevant to plausible options,” that choice is “virtually unchallengeable.” Id.
Even if the investigation was “less than complete,” counsel’s decision is awarded great
deference so long as the limitation on the investigation was reasonable. Id. at 691.
3. Analysis
The Court overrules Cox’s objections to the Report and Recommendations (Civ.
Dkt. No. 54). Based on the information known to him at the time, Cox’s counsel was not
constitutionally deficient for failing to object to the distribution enhancement on the
alternative bases raised by Cox in his amended Section 2255 motion. The PSR—combined
with the factual resume and the extensive number of sexually explicit images of Doe that
Cox possessed—permitted a reasonable inference that the distributed images were also
sexually explicit. As a result, it was reasonable for Brigman to conclude that there was no
merit to objecting based on the content of the images. In addition, the distribution was
relevant conduct either as part of Cox’s preparation for the offense or as occurring during
the offense of conviction, and the information cited by Cox to dispute that conclusion was
not known to Brigman at the time. Finally, Cox has not shown a reasonable probability
that he would have received a different sentence had Brigman raised these additional
grounds for objecting to the distribution enhancement.
A. Cox’s counsel was not ineffective for failing to object to the enhancement
on the basis that the images were not sexually explicit.
The Court overrules Cox’s objections that his sentencing counsel was ineffective for
failing to object to the distribution enhancement on the basis that the distributed images
were not sexually explicit. The evidence provided ample reason to infer that the distributed
images were sexually explicit, and nothing known to Brigman at the time gave him a basis
to refute that inference. Under such circumstances, it was not unreasonable for Brigman to
not object on this basis.
Cox’s central contention is that, without actual knowledge of the content of the
images besides that Doe was nude, Brigman should have objected to the enhancement. See
Civ. Dkt. No. 54 at 8–17. As Cox notes, for the distribution enhancement to apply, the
content must have been sexually explicit conduct as defined in 18 U.S.C. § 2256(2). See
USSG § 2G2.1 cmt. 1. As relevant here, Section 2256(2) defines “sexually explicit conduct”
as “lascivious exhibition of the anus, genitals, or pubic area of any person.” 18 U.S.C.
§ 2256(2)(A)(v). Mere nudity is insufficient to qualify as sexually explicit conduct. United
States v. Steen, 634 F.3d 822, 826–28 (5th Cir. 2011). Accordingly, Cox asserts that the
factual resume, which noted that the images were of Doe nude, was an insufficient basis for
the PSR to apply the enhancement. Civ. Dkt. No. 54 at 8–15.
However, the context of that statement in the factual resume combined with the
significant number of sexually explicit images and videos that Cox had of Doe created a
reasonable inference that the distributed images were also sexually explicit. A “district
court may adopt facts contained in a PSR without inquiry, so long as the facts have an
adequate evidentiary basis and the defendant does not present rebuttal evidence.” United
States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). Additionally, “in determining whether
an enhancement applies, a district court is permitted to draw reasonable inferences from the
facts.” Id. The evidence here permitted such an inference that the distributed images were
sexually explicit. The factual resume states that Doe sent sexually explicit images to Cox
and continued to do so because he threatened to send those images to her friends and
family. Cr. Dkt. No. 30 at 4. The admission is immediately followed by the statement that
Cox sent nude images of Doe to another person. Id. In addition, Cox agreed that a search
of his phone revealed 658 images and 74 videos of Doe engaged in sexually explicit conduct
that satisfied the definition of child pornography. Id. at 3. Given the extensive number of
sexually explicit photos that Cox had of Doe and his threats to distribute such photos, the
Court could reasonably infer that the nude images of Doe that Cox distributed were also
sexually explicit. Accordingly, Brigman reasonably concluded that the Court would make
such an inference if he had objected on the basis that the images were not sexually explicit
and that, as a result, any such objection would fail.
Cox argues that this extrapolation of the content of the distributed images from his
collection of photos lacks sufficient reliability to have justified the enhancement, particularly
in light of Cox’s testimony at the hearing that he distributed these images years before his
arrest. Civ. Dkt. No. 54 at 13–15. But the underlying facts that permit the inference are
clearly reliable as they were admitted by Cox himself: (1) he had 658 images and 74 videos
of Doe engaged in sexually explicit conduct; (2) he obtained these images and videos by
threatening that he would distribute the images if she stopped; and (3) he carried out this
threat on at least one occasion by distributing nude images of Doe to a boy she dated. Cr.
Dkt. No. 30 at 3–4. The volume of sexually explicit images in this case combined with
Cox’s threats to distribute them permit the reasonable inference that the distributed images
were sexually explicit. While Doe stated that she also sent non-nude images to Cox such
that not all images he had of her were sexually explicit, see Civ. Dkt. No. 14-1 at 4, he
admitted that the distributed images themselves were nude and that he obtained images as
part of this coercion, Cr. Dkt. No. 30 at 4. Even if it is possible that the images were not
sexually explicit, sentencing facts need only be established by a preponderance of the
evidence. See United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012). It was not
unreasonable for Brigman to determine that the mere speculative possibility that, despite
coercing sexually explicit images from Doe based on threats of distributing such images,
Cox instead distributed merely nude images would not outweigh the strong circumstantial
evidence that he distributed sexually explicit images.
And it was not unreasonable under these circumstances to be concerned, as Brigman
was, that an objection to the content of the images might be viewed as denying
responsibility for the offense. See Civ. Dkt. No. 49 at 81–82. If a defendant “falsely denies,
or frivolously contests, relevant conduct that the court determines to be true,” he “has acted
in a manner inconsistent with acceptance of responsibility.” USSG § 3E1.1 cmt. 1(A).
Disputing statements in the factual resume can cause a defendant to lose acceptance of
responsibility. See United States v. Addison, 714 F. App’x 477, 477 (5th Cir. 2018). The
burden at sentencing would have been on Cox to provide rebuttal evidence to counter the
reasonable inference from the PSR’s facts. See Caldwell, 448 F.3d at 290–91. To do so, Cox
would have needed to show “that those facts are ‘materially untrue, inaccurate or
unreliable.’” Harris, 702 F.3d at 230 (quoting United States v. Huerta, 182 F.3d 361, 364–65
(5th Cir. 1999)). And mere objections are insufficient—a defendant must provide
“testimony or other evidence.” United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010).
Since Cox claims that the images in question was not among those seized, it appears that his
only rebuttal evidence could have been his own testimony as to the content of the images.
See Civ. Dkt. No. 49 at 20–21, 39. Based on his testimony at the evidentiary hearing, he
would have argued that images were not sexually explicit because it was “a picture of [Doe]
in her bra from the waist to her neck.” Id. at 39. However, had Cox argued that the
distributed images were not actually nude as he claimed at the evidentiary hearing,2 he
would have been disputing conduct he previously testified under oath that he committed.
See id.; Cr. Dkt. Nos. 30 at 4; 60 at 10.
It was not unreasonable for Brigman to be concerned about the possible
consequences of offering such contradictory testimony. Had he brought this objection and
lost the three-point reduction for acceptance of responsibility, Cox’s offense level would
have been 43 and his advisory guidelines range would have been life imprisonment, reduced
to 360 months due to the statutory maximum. See Cr. Dkt. No. 38-1 at 11–13, 19. Even if
this outcome was uncertain, Brigman’s strategic choice to not take this risk was not
2 To the extent Cox argues that his definition of “nude” would also cover the content of the images
he claims he distributed, see Civ. Dkt. No. 49 at 39, this is belied by other portions of his testimony
at the evidentiary hearing where he stated that he understood “nude” to mean images of “her
completely undressed.” Civ. Dkt. No. 49 at 20.
unreasonable. And if he had tried to object without any rebuttal evidence, the objection was
unlikely to succeed.
Finally, based on the evidence known to Brigman at the time, it was reasonable to
not object because he had no reason to believe that the images were not sexually explicit.
He had reviewed the images obtained by the government and testified that every single one
he viewed was sexually explicit. Civ. Dkt. No. 49 at 80–81. Cox admitted that he told
Brigman that the factual resume was true. Id. at 38. He further testified that he did not tell
Brigman that he had sent the photos years earlier or that it was an image of Doe in her bra
from the waist to the neck. Id. at 37–39. Accordingly, at the time of sentencing, Brigman
knew all the facts in the factual resume that provided a reasonable inference that the
distributed images were sexually explicit. He further knew that all the images he had seen
were sexually explicit, further strengthening that inference. But he did not know any of
Cox’s current claims about the images that might have rebutted that inference.
Judging Brigman’s strategic choice based on the information available to him at the
time, as the Court must, it cannot conclude that he acted unreasonably by not bringing this
objection or by not inquiring further into the content of the image. See Strickland, 466 U.S.
at 690–91. Brigman had looked at numerous sexually explicit images possessed by Cox.
Cox had admitted to possessing over 600 sexually explicit images of Doe. And Cox had not
provided him with any information to dispute that the distributed images were sexually
explicit. Under these circumstances, it was not unreasonable to conclude that the
distributed images were most likely also sexually explicit. Even if Cox had told him that the
images were of Doe in a bra, Brigman would have been faced with Cox’s earlier statements
about the content of the images that contradicted that claim. Any objection would have had
to surmount Cox’s previous sworn testimony that the factual resume was accurate, likely
undermining any credibility of his claim about what the images depicted and risking a loss
of acceptance of responsibility.
Under these circumstances, Cox has not surmounted the strong presumption that
Brigman’s “conduct [fell] within the wide range of reasonable professional assistance.” Id.
at 689. Accordingly, Cox has not shown that Brigman was constitutionally deficient by not
objecting to the distribution enhancement on the basis that the image was not sexually
explicit.
B. Cox’s counsel was not ineffective for failing to object to the enhancement
on the basis that the distribution was not relevant conduct.
Cox’s second basis for ineffective assistance of counsel suffers from similar problems.
Cox’s claim turns on the asserted temporal distance between when he distributed the images
and the date of the offense conduct. However, Cox himself testified that he never told
Brigman that he had distributed the images years before the production of the image for
which he was convicted. Civ. Dkt. No. 49 at 38. Instead, Brigman knew that over several
years, Cox had engaged in the same pattern of demanding sexually explicit images from
Doe by threatening to distribute the images if she stopped and that he had at some point
actually distributed some images. See Cr. Dkt. No. 30 at 3–4. Based on these facts,
Brigman reasonably concluded that any objection that the distribution was not relevant
conduct would likely fail.
Under the sentencing guidelines, a court must consider all relevant conduct in
determining a defendant’s proper offense level. USSG § 1B1.3. Relevant conduct includes
“all acts and omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant . . . that occurred during the commission of
the offense of conviction, in preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense.” Id. § 1B1.3(a)(1). The R&R found that
the distribution at issue could constitute relevant conduct because it occurred either “during
the commission of the offense of conviction” or “in preparation for that offense.” Civ. Dkt.
No. 51 at 34–35. Cox disputes both findings based on his testimony at the evidentiary
hearing that the images were sent years before the offense of conviction. Civ. Dkt. No. 54 at
19–23.
The sequence of events at issue can support a finding that an act is relevant conduct.
See United States v. McGavitt, 28 F.4th 571, 578 (5th Cir. 2022). For example, in McGavitt, a
defendant’s sexual intercourse with the victim was relevant conduct, either “during the
commission of” or “in preparation for” the offense of conviction, when “he demanded that
[the victim] continue sending him explicit images of herself after he had intercourse with
her.” Id. Similarly here, Cox’s distribution of the images of Doe occurred alongside his
continuous threats that if she did not provide him with additional sexually explicit images,
he would distribute her photos. Cr. Dkt. No. 30 at 4. By distributing the image, Cox
ensured that Doe knew his threats were legitimate and that she would continue to send him
more images. Cox himself stipulated in the factual resume that Doe “could not stop
because Cox threatened to send the photographs to her family and friends.” Id. And this
statement immediately preceded his admission that he carried out this threat on at least one
occasion. Id.
The nexus between Cox’s threats, his act of distribution, and his continued receipt of
the photos from Doe further supports concluding that the distribution was relevant conduct.
Cox compares his case to United States v. Yerena-Magana, where the Fifth Circuit found that a
defendant’s illegal entry into the country was not relevant conduct for a drug offense. 478
F.3d 683, 689–90 (5th Cir. 2007). There, the Fifth Circuit noted that there was no evidence
that the defendant had “intended to commit the drug offense for which he was sentenced at
the time he illegally entered the United States” even though the illegal entry had occurred
one month prior to the drug offense. Id. at 689. The entry was not relevant because it was a
“‘discrete, noncontinuing offense . . . completed prior to’ the drug offense, which harmed
different societal interests.” Id. (quoting United States v. Southerland, 405 F.3d 263, 268 (5th
Cir. 2005)). But here, Cox admitted in his factual resume that he had threatened Doe with
distribution in order to obtain more images, permitting the reasonable inference that his
actual distribution was intended to ensure that Doe knew his threats were legitimate. See
Cr. Dkt. No. 30 at 4. Cox’s exploitation of Doe was a continuing offense, and his
distribution of her images to another person formed part of this conduct. And this activity
harms the same societal interest. There is no attenuation between Cox’s distribution of
Doe’s images from his coerced production of those images based on his repeated threats to
distribute even if he had distributed the images years earlier. See id. It was not unreasonable
for Brigman to conclude that the Court would determine that this connection between the
production of the images due to Cox’s threats and his act of carrying out such a threat was
sufficient to constitute relevant conduct.
Moreover, Brigman did not know of this alleged temporal distance. Cox admitted
that he never told Brigman when he distributed the images. Civ. Dkt. No. 49 at 38. So, at
the time, Brigman had no basis to contest that the distribution was relevant conduct.
Instead, he knew that Cox had engaged in a lengthy relationship with Doe where he
continually coerced her to provide sexually explicit images—including the one named in the
indictment—by threatening to distribute her images if she stopped. Under the
circumstances, it was reasonable to believe that Cox’s distribution on one occasion was an
effort to ensure that Doe would send him more images by demonstrating that his threats
were real and was part of Cox’s continuous exploitation of Doe over several years. No
information known to Brigman suggested that the distribution was not in preparation for the
offense or committed during the offense.
Under these circumstances, it was not unreasonable for Brigman to decide that it was
better to object to the distribution enhancement on the basis that Cox’s act was not
distribution rather than that it was not relevant conduct. Brigman had no real evidence with
which to rebut the reasonable inference that the distribution conduct included in the factual
resume was relevant conduct. Any argument as to relevant conduct would have confronted
the substantial problem that Cox’s distribution was the fulfillment of the threat to distribute
that he used to compel Doe to continue to send him sexually explicit images and was
therefore closely linked to his offense of conviction. Confronted with these issues, Brigman
chose the argument he believed would have the greatest chance of success in avoiding the
application of the distribution enhancement. See id. at 81–82, 89–90, 92–93. Cox has not
demonstrated that Brigman’s actions were constitutionally deficient rather than simply
strategic choices that were ultimately unsuccessful. Cox’s preference for alternative
arguments challenging the distribution enhancement, with the benefit of hindsight and
information not known to Brigman, is insufficient to show ineffective assistance of counsel.
See Strickland, 466 U.S. at 689–91; Yarborough, 540 U.S. at 5–8.
C. Cox has not demonstrated a reasonable probability that he would have
received a different sentence had his attorney objected on these alternative
grounds.
Finally, even if Cox had shown that Brigman was ineffective, his claim would
nevertheless fail because he has not demonstrated that he was prejudiced. For the reasons
already stated by the Court, any objection was unlikely to succeed. As a result, Cox was not
prejudiced by Brigman’s failure to make such objections because they would not have
changed his guidelines range. In addition, the Court’s explanation of its decision to impose
a sentence of 324 months of imprisonment was based on factors independent of the
particular guidelines range. The Court noted that the sentence was proper based on its
consideration of the sentencing factors of 18 U.S.C. § 3553(a), particularly the egregious
offense conduct.
Prejudice requires demonstrating a reasonable probability that the defendant would
have received a different sentence had the objections been made. See Strickland, 466 U.S. at
694. Often, “a defendant can rely on the application of an incorrect [g]uidelines range to
show an effect on his substantial rights.” Molina-Martinez v. United States, 578 U.S. 189, 203
(2016). But if the explanation of the sentence “make[s] it clear that the judge based the
sentence he or she selected on factors independent of the [g]uidelines,” a defendant cannot
show prejudice based on an alleged miscalculation of the guidelines. Id. at 200–01. A court
must express a clear intent to impose the same sentence regardless of the guidelines error but
need not use any “magic words.” United States v. Shepherd, 848 F.3d 425, 427 (5th Cir.
2017). In considering the stated reasons for the sentence, the Court must ask “[w]hat was
driving this judge’s decision to impose this sentence for this defendant.” United States v.
Sanchez-Hernandez, 931 F.3d 408, 411 (5th Cir. 2019).
Here, the Court gave a detailed explanation of why it selected the sentence imposed
that demonstrates that Cox’s offense conduct and his threat to the safety of others drove the
sentence, not the advisory guidelines range:
THE COURT: I am required by statute to impose a sentence that is sufficient
but not greater than necessary to comply with the purposes of sentencing set
forth in 3553(a)(2) and to consider all factors of Section 3553(a), which I have
done.
Mr. Cox, all that means is I consider certain guideposts in trying to figure out
what is a reasonable sentence. One of those guideposts is the nature and
circumstances of the offense, or what did you do.
Mr. Haag talked briefly about that. This is an incredibly concerning offense.
It’s an incredibly disturbing offense. You’re here before the Court for coercing
and inducing the production of several sexually explicit images and videos from
a 16-year-old minor. In total, you possessed 658 images and 74 videos of the
minor. You manipulated her, you threatened her, you even distributed one of
her images to another individual that she knew.
You also engaged in an [inappropriate] sexual relationship with another minor
victim, and you likewise, induced her to produce sexually explicit images. You
are considered by me to be a repeat and dangerous sex offender against minors.
It’s incredibly serious conduct. Your conduct has undoubtedly caused
immeasurable damage to your victims and their families.
Of particular concern is what Mr. Haag pointed out, which is that you were
contacted by the police, you were told to cut it out, you had an opportunity to
go “What was I thinking? What in the world was I doing?” And you doubled
down.
The scope of your conduct is very concerning to me, the consistency and just
dogged determination of your conduct and your manipulation and your threats
of these victims is very concerning to me, and the fact that there are multiple
victims here is concerning. And finally, that you are an actual contact offender.
I can’t ignore all of that.
I also look, as another guidepost, at your history and your characteristics. You
are young. Are you still 22 years old?
THE DEFENDANT: Yeah.
THE COURT: You do have some criminal history, which includes some
violence—juvenile adjudication for criminal mischief, and prior adult
conviction for assault causing bodily injury of a family member. The history
of violence against women is particularly concerning to me in light of this
offense, and I do find the PSR makes that clear and establishes that.
I have considered the remaining factors as well, which are the need to reflect
the seriousness of the offense—and it doesn’t get much more serious than this—
to promote respect for the law, provide a just punishment, afford adequate
deterrence, and protect the public from further crimes.
Mr. Brigman, I understand your argument that “For goodness’ sake, do we
really need this much time to cause somebody to make a change?” You know,
if causing someone to make a change were the only consideration that Congress
told me to look to, I would agree with you. I sure hope not. I would hope that
we don’t need that much time.
But that’s not the only consideration that I am required to consider. I consider
all of the factors and all those are completely independent of whether he can
make a change or not. That’s not all this is about. It’s about much more than
that and I can’t ignore that.
So after consideration of all of those factors, the purposes of sentencing, and
the parties’ arguments, I have considered your request for a downward
variance. I can understand it in this case given the age of your client and the
length of the advisory range. I do recognize that it’s purely advisory and I could
downwardly vary if I thought it were appropriate.
Given all of the 3553(a) factors that I have discussed today, I don’t think it
would be. I have determined that a sentence of 324 months is sufficient but not
greater than necessary.
Cr. Dkt. No. 61 at 11–14. Importantly, although the Court mentioned the guidelines, it did
so solely in addressing Brigman’s motion for a downward variance. See id.
While Cox argues that it is “numerically unlikely” that he would have received a
sentence of 324 months if it had not been the bottom of his advisory guidelines range, see
Civ. Dkt. No. 54 at 27–28, the Fifth Circuit has found similar explanations to be sufficient
to show that the sentence was based on factors independent of the guidelines. In United
States v. Nino-Carreon, the Fifth Circuit found there was no reasonable probability of a
different sentence where the district court gave a “comprehensive recitation” of the
defendant’s criminal history and concluded that the imposed sentence was necessary to
satisfy the sentencing factors. 910 F.3d 194, 197 (5th Cir. 2018). A court’s discussion of the
seriousness of the offense, the defendant’s criminal history, and the “need to give a sentence
that deters the criminal conduct of the defendant and to protect the public” was also a
sufficient explanation of factors independent of the guidelines. United States v. Johnson, 943
F.3d 735, 738 (5th Cir. 2019). Similarly, in United States v. Torres, the district court’s “clear
account of its reasoning” based on the seriousness of the offense and the defendant’s
recidivism demonstrated that the sentence was based on factors besides the guidelines. 858
F. App’x 727, 729–30 (5th Cir. 2021). And a court’s reference to the guidelines range or a
variance is not sufficient to “overrid[e] the court’s consideration of independent factors in its
sentencing decision.” United States v. Garcia Miguel, 829 F. App’x 36, 39–40 (5th Cir. 2020).
Like in those cases, the Court’s detailed discussion of the Section 3553(a) factors
independent of the guidelines demonstrates that there is no reasonable probability that Cox
would have received a different sentence had his attorney brought these additional
objections.
This is especially apparent given the facts and circumstances involved. Even if Cox
sent an image of the victim in her underwear that was not sexually explicit, it would still be
an aggravating factor. Cox sent, at the very least, a private, intimate photograph of her to
her former boyfriend, and he did so as a demonstration of his power over her and his
willingness to carry out his threats. He did this, of course, to ensure that his sexual
exploitation of his victim would continue. Given this deplorable conduct, any technical
objection to the distribution enhancement would not have changed the sentence imposed.
Accordingly, the Court’s explanation of Cox’s sentence demonstrated that factors
independent of the guidelines—namely, the seriousness of his offense conduct along with
the other Section 3553(a) factors—were the basis for its imposition of a sentence of 324
months. Cox therefore has not shown a reasonable probability that he would have received
a different sentence had Brigman objected to the distribution enhancement based on
relevant conduct or the images’ content.
4, Conclusion and Denial of Certificate of Appealability
Cox has not shown any deficient performance by his counsel for not objecting to the
Section 2G2.1(b)(3) enhancement on grounds other than those raised at the sentencing
hearing, and he was not prejudiced by the failure to object. The Court therefore overrules
his objections and adopts the Report and Recommendations (Civ. Dkt. No. 51) as the
finding of the Court. The Court denies Cox’s amended motion to vacate his sentence. Civ.
Dkt. No. 23. Cox’s original motion (Cr. Dkt. No. 55; Civ. Dkt. No. 1) is denied as moot.
Additionally, considering the record and relevant authorities in this case, the Court
denies a certificate of appealability under Federal Rule of Appellate Procedure 22(b), Rule
11(a) of the Rules Governing Section 2255 Proceedings for the United States District Court,
and 28 U.S.C. § 2253(c). As explained above, the petitioner has failed to show that
reasonable jurists would find (1) this Court’s “assessment of the constitutional claims
debatable or wrong,” or (2) “it debatable whether the petition states a valid claim of the
denial of a constitutional right” and “debatable whether [this Court] was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
So ordered on December 4, 2023.
J. es WESLEY HENDRIX
UNITED STATES DISTRICT JUDGE
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