*1 Before F LAUM , R OVNER , and S CUDDER , Circuit Judges . S CUDDER , Circuit Judge . Brian Miller cut a hole in his bath- room wall and secretly lmed teenage girls—friends of his own children—undressing and showering. Federal authori- ties learned of his conduct, commenced an investigation, and, after extensive discussions, o ered to allow Miller to plead guilty to possessing child pornography, an o еnse with a maximum penalty of ten years’ imprisonment. Miller rejected the o er and instead chose to go to trial, where he was *2 convicted of the greater o ense of producing child pornogra- phy and then sentenced to 18 years. Having previously re- jected Miller’s challenge to his conviction and sentence on di- rect review, we now a ffi rm the district court’s denial of his petition for post-conviction relief under 28 U.S.C. § 2255. The district court correctly concluded that Miller failed to show that his trial counsel provided ine ective assistance during plea negotiations.
I A In June 2012, after rеceiving a tip about Miller’s miscon- duct, local authorities obtained a warrant to search his home, where they found the rigging in his basement and his cell phone. In time federal authorities became involved and searched Miller’s phone. The search uncovered so-called thumbnail images—small, still photographs that serve as footprints of videos that have been deleted—of naked teenage girls. This initial search did not recover any video les on Mil- ler’s phone, however.
When federal agents approached and questioned Miller about his conduct, he hired an a orney, Joel Brown, to repre- sent him in the investigation. The agents made clear from the outset that Miller would be charged with a child pornography o ense. The only unresolved question was whether that charge would be for simple possession or production. After conferring with federal prosecutors, the agents informed Brown that the government would permit a plea to the lesser charge if Miller could show that his conduct was limited to lming the teenage girls and did not extend to any sexual con- tact with them. Miller sought to make this showing by *3 agreeing to meet with the agents to discuss his o ense con- duct and to submit to a polygraph exam.
Much hung in the balance for Miller: if he was able to plead to a possession o ense, he faced a maximum penalty of ten years’ imprisonment. See 18 U.S.C. § 2252A(a)(5)(B), (b)(2). But if he failed the polygraph or otherwise was unable to persuade the government of the scope of his conduct, Mil- ler would face the 15-year mandatory minimum sentence that Congress prescribed for producing child pornography. See id. § 2251(a), (e).
Miller passed the polygraph and pro ered successfully, only then to decline the government’s plea o er. The govern- ment reacted as it told Miller it would—by seeking an indict- ment charging him with producing child pornography. By this same time, and in response to learning that Miller opted to go to trial, the U.S. Secret Service had conducted a renewed forensic examination of Miller’s phone and managed to re- cover the videos he made of the teenage girls undressing or showering in his basement bathroom. The indictment the grand jury returned against Miller contained 22 production counts, with each count tracking each of the 22 video les found on his phone.
A bench trial followed and ended in the district court nd-
ing Miller guilty on all counts. The court then sentenced Mil-
ler to 18 yеars’ imprisonment and 15 years’ supervised re-
lease. We a ffi rmed on direct review. See
United States v. Miller
,
B
Miller then turned his a ention to post-conviction relief. In his petition to vacate his sentence under 28 U.S.C. § 2255, *4 he claimed that his trial counsel, Joel Brown, provided inef- fective assistance during the pre-indictment plea negotia- tions. With Miller and Brown o ering polar opposite versions of what transpired during those discussions, the district court held a hearing to assess the competing accounts.
Miller and Brown’s testimony was indeed night and day di erent. Miller testi fi ed that Brown advised him his maxi- mum sentence would be ten years no mа er what. At no point, Miller insisted, did Brown inform him that declining a plea could result in production charges with a 15-year man- datory minimum sentence. Miller contended that Brown’s faulty advice sealed his fate: there were no viable defenses to the production charges, especially once the Sеcret Service found the video les revealing the young girls undressing and showering. With those videos in the government’s hands, Miller insisted, there was no way the defense he ultimately pursued at trial—that the images did not re fl ect the “lascivi- ous exhibition” of any girl’s genitals, as required by §§ 2251(a) and 2256(2)(A)(v)—had any meaningful chance of succeed- ing.
For his part, Brown o ered a starkly di erent account. He outlined for the district court his extensive experience as a criminal defense lawyer and testi ed that he fully informed Miller of the risks of rejecting the plea to simple possession and facing a charge of producing child pornography. Brown made plain that he expressly and speci cally advised Miller that a conviction for producing child pornography would re- sult in a sentence of at least 15 years, but that Miller insisted on going to trial on the view that accepting a ten-year sentence for possessing child рornography was tantamount to receiv- ing a life sentence. Brown then underscored that he and Miller *5 “spent a long, long time” reviewing the case law informing the question whether the video images “met the federal de - nition of lascivious.” Brown further emphasized that, in the end, he left to Miller the ultimate decision of whether to ac- cept the government’s o er (to the possession charge) or to proceed to trial (on the greater production charge).
After hearing and weighing this competing testimony, the
district court credited Brown’s testimony. The court found
that Brown o ered the more credible account of what had
transpired during the pre-indictment discussions with the
government. Even more speci cally, the district court found
that Brown provided Miller “with enough information that he
was aware of the situation he faced.” Accordingly, the court
concluded that Brown’s performance was not de cient within
the meaning of the standard announced by the Supreme
Court in
Strickland v. Washington
,
II
A On appeal Miller renews his argument that Joel Brown provided ine ective assistance of counsel during pre-indict- ment plea negotiations. The government disagrees, taking the broad position that the Sixth Amendment right to counsel dоes not apply to pre-indictment plea discussions. From there, however, the government steps back and argues that, even if Miller did have a right to e ective assistance from Brown during plea negotiations, the district court got it right in concluding that the claim failed on the merits.
The government u ered nоt a word in the district court about the inapplicability of the Sixth Amendment to pre- *6 indictment plea negotiations. Miller urges us to view the gov- ernment’s silence as waiver or forfeiture. While Miller’s point is well-taken, we prefer to chart a narrower course and can do so by proceeding to thе merits of the district court’s conclu- sion that Brown did not render ine ff ective assistance.
B
The familiar teachings of
Strickland
supply the principles
for assessing an ine ective-assistance-of-counsel claim. We
consider, fi rst, whether counsel’s performance was de fi cient
and, if so, whether the de cient performance prejudiced the
petitioner. See
Strickland
,
In advising a client to reject a plea, an a tt orney’s perfor-
mance “is de cient if the a tt orney grossly mischaracterizes
the evidence or advises a сlient to reject a plea o er and go to
trial in the face of overwhelming evidence and no viable de-
fenses.”
Id.
It is not enough for a defendant to show that he
faced an uphill ba tt le at trial. The defendant needs to go fur-
ther by showing that, given the apparent strength of the gov-
ernment’s cаse and the likelihood of a successful defense, any
reasonable a orney would have recommended forgoing trial
and accepting a guilty plea. See
id.
The Sixth Amendment re-
serves the ultimate choice for the accused: it is up the defend-
ant, informed by counsel’s advice, to detеrmine whether to
accept a plea or instead to play the odds by proceeding to trial.
*7
See
Jones v. Barnes
,
Like the district court, we cannot conclude that Brown’s performance was objectively unreasonable. Accepting the facts as found by the district court—none of which Miller has shown re fl еct clear error—we start from the important deter- mination that Brown informed Miller of the risks of rejecting the government’s plea o er and proceeding to trial on charges of producing child pornography. In testimony credited by the district court, Brown explained that Miller was “well aware” оf the risks of forgoing a plea to simple possession charges and instead chose to put the government to its proof on the production charges. The law required no more of Brown.
To be sure, the district court could have articulated its ndings about the precise content of Brown’s advice to Miller in more detail. Regardless, it is abundantly clear from the rec- ord—owing to the care the district judge took in conducting the hearing and allowing Miller and Brown to air their respec- tive positions—that the court found Brown’s account alto- gether more credible than Miller’s. Put another way, the only fair and objective takeaway from the hearing transcript and district court’s ndings is that Brown fully advised Miller on the risks of choosing to proceed to trial.
Miller overshoots in contending that Brown’s advice
walked him into a sure re conviction at trial. Recall that the
indictment charged Miller with violating 18 U.S.C. § 2251(a),
which mаde it a crime to use “any minor to engage in … any
sexually explicit conduct for the purpose of producing any
visual depiction of such conduct[.]”
Id.
“Sexually explicit con-
duct” includes the “lascivious exhibition of the anus, genitals,
or pubic area of any person.”
Id.
§ 2256(2)(A)(v). From there,
*8
however, Congress did not de ne “lascivious exhibition,”
and federal courts have struggled to de ne the term with
much precision or particularity. See,
e.g.
,
United States v.
Schuster
,
Miller went to trial on the defense thаt the prosecution
could not prove that the four thumbnail images found on the
phone—which, at the time, comprised the extent of the gov-
ernment’s evidence—depicted “lascivious exhibition” within
the meaning of § 2256(2)(A)(v). Success at trial depended on a
distinction between mere nudity and lascivious exhibitiоn—a
distinction recognized in the case law. Take our precedent, for
example. We have observed that “more than nudity is re-
quired to make an image lascivious.”
United States v.
Griesbach
,
Indeed, at least one circuit had reached that precise con- clusion in circumstances su ffi ciently analogous to those fac- ing Miller. In United States v. Steen , the Fifth Circuit held that a secretly lmed video of a teenager lying naked in a tanning bed was not lascivious because there was insu ffi cient evi- dence that the video was intended to elicit a sexual response in the viewer. 634 F.3d 822, 828 (5th Cir. 2011). Reasoning from cases like Steen , Brown could have reasonably advised Miller that a similar defense had some prospect of prevailing at trial because the thumbnail images found on Miller’s phone *9 depicted li le more than nudity—girls undressing or shower- ing—but not lascivious exhibition. Not one of the still photos re fl ected any girl in a sexual pose or performing any sexual act. Nor did any of the images re fl ect a close-up view of any girl’s genitals.
Miller begs to di ff er by focusing not so much on the still images initially recovered from his phone but instead on the video images recovered by the Secret Service during the sec- ond search. But Miller is con fl ating the timeline of events. The recovery of the videos came after —not before—he had de- cided to reject the governmеnt’s plea o er and proceed to trial. Brown, in other words, formulated and conveyed his ad- vice to Miller at a time when the government’s only forensic evidence at trial would have been the thumbnail images. The law did not require Brown to foresee that the Secret Service, which conductеd the rst search of Miller’s phone, would somehow manage to recover the videos in a second search. And with cases like Steen in the Federal Reporter, it was not beyond the pale for Brown to have advised Miller that he had some prospect of prevailing at trial on the defense that the government could not prove beyond a reasonable doubt that the still images re fl ected lascivious exhibition.
Our conclusion does not change by observing that the de-
fense faced di ffi cult odds once the government found and
produced the video images. By then the plea o er was o the
table. As we noted in our opinion a ffi rming Miller’s convic-
tion, the minors’ nudity, combined with Miller’s e orts to lm
them and conceal his misconduct, was enough to support a
nding that the videos featured a “lascivious exhibition” un-
der § 2256(2)(A)(v). See
Miller
, 829 F.3d at 525–26; see also
United States v. Russell
,
Given the reasoning embodied in cases like
Steen
, we agree
with the district court that Brown’s advice was not objectively
unreasonable. Remember, too, that
Strickland
highlights that
the strategic choices of counsel based on legal and factual re-
search “are virtually unchallengeable” on an ine ective-аssis-
tance claim. See
On this record, then, we AFFIRM.