United States Court of Appeals
For the Eighth Circuit
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No. 22-1112
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United States of America
Plaintiff - Appellee
v.
Douglas James Schneider
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Western
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Submitted: June 14, 2022
Filed: July 20, 2022
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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BENTON, Circuit Judge.
According to the government, in 2018, Douglas J. Schneider drove his
stepdaughter from their home in North Dakota to Montana with the specific intent
of engaging in sexual acts with her—one of many instances of Schneider’s sexual
abuse of her from age 7 to 11.
In February 2021, Schneider and the government reached a binding plea
agreement: Schneider would plead guilty to transportation of a minor in violation
of 18 U.S.C. § 2423(a) and receive a below-guideline sentence of 150 months. At a
change-of-plea hearing in March, the district court rejected the plea agreement:
Well, I’m not going to accept this binding plea agreement. Mr. Heck,
your client can either have the three points or he can take it to trial. And
I will tell you this, I’ll sentence him within the guideline range, but he’s
not going to get a 15-year sentence for this type of conduct, particularly
involving somebody in his care.
The government asked if the parties could submit a future plea agreement
informally. The district court answered, “I’m okay with that. And as I indicated,
I’ll sentence him within the guidelines under a 37—so we’re looking at 210 to 262
months—but he’s not going to get 15 years. He’s going to get more than that.”
In July, the parties reached a second plea agreement. It was nonbinding: in
exchange for Schneider’s guilty plea, the government would recommend a sentence
of 210 months—the lower limit of the guideline range as calculated by the district
court during the first hearing. In September, the district court held a second change-
of-plea hearing to evaluate Schneider’s understanding of the agreement:
THE COURT: I see that the Plea Agreement is nonbinding. Do you
know what that means?
THE DEFENDANT: Yes. That you can accept it and that you don’t
have to accept it as written.
THE COURT: Well, what it means is that you and your attorney and
the government are going to give me some recommendations as far as
the amount of time that you want—will—should receive for this
criminal violation for prison time, and I can do what I want; what they
suggest is not binding on me in any way. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: So what you and your attorney have talked about, I can
throw that out the window and sentence you to the max, maximum
amount of time, that the law will allow. And if that occurs, you’re stuck
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with your change of plea. So this is a do-or-die moment; if you change
your plea today, you can’t go back. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
The district court also confirmed that Schneider was aware of the maximum
sentence:
THE COURT: Paragraph 7 sets out the maximum penalty for a plea of
guilt or a finding of guilt by a judge or jury with regard to Count One
of the Indictment. Do you understand, sir, with regard to a plea of
guilty, if you enter that here, that I can imprison you for any amount of
years up to the rest of your life?
THE DEFENDANT: Yes, Your Honor.
At the end of the second hearing, the district court accepted Schneider’s guilty plea.
In December, a pre-sentence report was prepared. The PSR calculated a
guideline range of life, due to a 2-level enhancement for undue influence and a 5-
level enhancement for pattern of activity involving prohibited sexual conduct with
minors. See U.S.S.G. § 2G1.3(b)(2)(B), U.S.S.G. § 4B1.5. Schneider objected to
the PSR but did not move to withdraw his guilty plea.
In January 2022, at the sentencing hearing, Schneider’s counsel urged the
court to impose a sentence within the range discussed at the first change-of-plea
hearing:
. . . the guideline range, based on what it came back at, as [the
prosecutor] indicated, wasn’t contemplated at the time that it would end
up at life. I think that just—I’m not trying to throw any quotes back
from the Court either from the first plea hearing, but I don’t think any
party involved at that time anticipated that guideline range; and the
Court at paragraph 12 of the initial plea hearing noted that, and I think
Mr. Schneider was in part relying on that he’d be sentenced under a 37
looking at 210 to 262 months . . . . And in light of that, we would request
that the Court proceed with a range consistent with the Plea Agreement
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and consistent with the Sentencing Guideline range discussed at the end
of the initial plea hearing with a 210 to 262 months understanding what
the guidelines came back at.
The district court imposed a sentence of life without the possibility of parole: “As
per the Court’s recitation of the sentencing expectation, the Court is not bound by
the sentencing expectation that was presented to the Court at the time. The Court
indicated it would give Mr. Schneider a guideline sentence and that’s what I will do
today.”
Schneider appeals, arguing that the district court participated in plea
negotiations in violation of Rule 11(c)(1) of the Federal Rules of Criminal
Procedure, requiring vacatur of his conviction and sentence. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
I.
The government argues that Schneider waived his right to appeal. “Whether
a valid waiver of appellate rights occurred is a question of law that we will review
de novo.” United States v. Haubrich, 744 F.3d 554, 556 (8th Cir. 2014).
A defendant’s right to appeal is statutory, not constitutional, and may be
waived. United States v. Andis, 333 F.3d 886, 889 (8th Cir. 2003) (en banc), quoting
Abney v. United States, 431 U.S. 651, 656 (1977). This court “must confirm that
the appeal falls within the scope of the waiver and that both the waiver and plea
agreement were entered into knowingly and voluntarily.” Id. at 889-90.
In the second plea agreement, Schneider waived “all rights to appeal or
collaterally attack . . . [his] conviction or sentence [and] all non-jurisdictional
issues.” Because Schneider’s appeal requests vacatur of his conviction and sentence,
it falls within the scope of the waiver.
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However, a violation of Rule 11(c)(1) is appealable unless the defendant
specifically waives “an appeal challenging the voluntariness of his plea.” United
States v. Thompson, 770 F.3d 689, 694 (8th Cir. 2014). The plea agreement in
Thompson said: “By signing this agreement, defendant voluntarily waives
defendant’s right to appeal the Court’s judgment against defendant . . . . Defendant
reserves only the right to appeal from a sentence that is greater than the upper limit
of the Court-determined Sentencing Guidelines range.” Plea Agreement, United
States v. Thompson, No. 3:12-cr-00029, DCN 71 at 11 (N.D. Oct. 4, 2012),
available in Appellee’s Br., United States v. Thompson, 2013 WL 2318007 at *21
(8th Cir. 2013). The defendant appealed his conviction and sentence, claiming Rule
11 violations. This court did not enforce the waiver: “Thompson specifically argues
. . . that as a result of the alleged Rule 11 violations, both his guilty plea and appeal
waiver were not entered into knowingly and voluntarily. Because Thompson did not
waive an appeal challenging the voluntariness of his plea, we address his
arguments.” Thompson, 770 F.3d at 694.
Schneider’s waiver of appellate rights is like the waiver in Thompson—it does
not specifically “waive an appeal challenging the voluntariness of his plea.” Id.
Schneider did not waive his right to this appeal.
II.
Because Schneider did not object before the district court, his Rule 11
argument is subject to plain error review. See United States v. Foy, 617 F.3d 1029,
1034 (8th Cir. 2010) (“Instances of noncompliance with Rule 11 may be raised for
the first time on appeal, but our review is for plain error.”). Schneider must show
that the district court committed an error, which is plain, which affected his
substantial rights, and failure to correct the error would seriously affect the fairness,
integrity, or public reputation of judicial proceedings. See United States v. Todd,
521 F.3d 891, 896 (8th Cir. 2008), citing United States v. Olano, 507 U.S. 725, 732
(1993).
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A.
“Rule 11 governs pleas, and among other things, prohibits judicial
involvement in plea negotiations with criminal defendants, stating that ‘[t]he court
must not participate’ in plea discussions.” United States v. Nesgoda, 559 F.3d 867,
869 (8th Cir. 2009), quoting Fed. R. Crim. P. 11(c)(1). This court has “strictly
construed the rule to require an absolute prohibition upon district court participation
in plea negotiations.” Id. “Under Rule 11, the judge’s role is ‘limited to acceptance
or rejection of agreements after a thorough review of all relevant factors.’”
Thompson, 770 F.3d at 695, quoting United States v. Gallington, 488 F.2d 637, 640
(8th Cir. 1973).
The government likens this case to Nesgoda, where the district court “merely
explained the effect of the terms already on the table” without “inject[ing] [its] own
terms into the plea agreement.” Nesgoda, 559 F.3d at 869 (alterations added).
However, this case is more like Thompson. The plea agreement there reduced
the drug quantity charged in exchange for a guilty plea to two counts. Thompson,
770 F.3d at 690. The reduction lowered the statutory minimum sentence to 12 years;
the maximum sentence remained life. The day before trial, Thompson notified the
district court he would accept the plea agreement. Id. at 691. The next morning,
however, Thompson stated he had changed his mind and wanted a trial. The district
court told Thompson that he was “engaging in a ‘high-risk strategy [ ] because on
one hand you’ve got 12 years,’ and ‘[y]ou’re a young enough man that it seems
probable that you will be able to serve that sentence and walk out of prison someday,
all right?’” Id. at 695. After a 15-minute recess, Thompson decided to take the plea
agreement. Id. at 692. The district court sentenced him to the statutory maximum
of 480 months on the first count, and a consecutive statutory maximum of life on the
second count. Id. at 693. Thompson appealed, claiming multiple Rule 11 violations.
Because “the district court’s comments suggested a sentence of 12 years was
a possible outcome if Thompson entered the plea agreement and pleaded guilty,”
this court “[a]ssum[ed] for the sake of analysis that the district court’s comments
constituted improper participation in plea negotiations in violation of Rule 11, and
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that the error was plain.” Id. at 696 (alterations added). This court condemned a
district court “engag[ing] itself in the negotiation of particular terms or conditions
of the plea agreement” by “committing itself to a ‘sentence of at least a certain level
of severity,’” “telling parties what sentence it would find acceptable,” or
“respond[ing] favorably” to new proposals. Id. at 695 (alterations added), citing
United States v. Crowell, 60 F.3d 199, 205 (5th Cir. 1995); United States v.
Kyle, 734 F.3d 956, 964-65 (9th Cir. 2013); and United States v. Kraus, 137 F.3d
447, 455-57 (7th Cir. 1998).
At the first change-of-plea hearing here, the district court said, “I will tell you
this, I’ll sentence [Schneider] within the guideline range . . . . [A]s I indicated, I’ll
sentence him within the guidelines under a 37—so we’re looking at 210 to 262
months . . . .” These comments did more than suggest that a sentence of 210 months
was possible. They committed the court to a sentence of at least a certain level of
severity and within a particular range.1 Under Thompson, this is plain error. See id.
(district court may not “engage itself in the negotiation of particular terms or
conditions of the plea agreement”), citing Crowell, 60 F.3d at 204-05 (district court
committing itself to a “sentence of at least a certain level of severity” is “precisely
th[e] type of participation that is prohibited by Rule 11” (alteration added));
Kyle, 734 F.3d at 960 (plain error where district court told the parties it would accept
a sentence “substantially above-guideline” but lower than “the statutory maximum
[of life imprisonment]”); and Kraus, 137 F.3d at 454 (“Once the court has rejected
that agreement, its license to speak about what it finds acceptable and
unacceptable—to suggest an appropriate sentencing range, for example—is at an
end.”).
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This renders irrelevant the government’s assertion: “The court’s statement
regarding the potential sentencing range of 210 to 262-months was not offered by
the court as an ‘acceptable’ range”; the district court “merely offered that it would
impose a within the guidelines range sentence, whatever the range may be.”
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B.
Schneider must show that the district court’s error affected his substantial
rights. See United States v. Harrison, 974 F.3d 880, 882 (8th Cir. 2020). “To show
the errors affected his substantial rights in this context, [the defendant] must
demonstrate a reasonable probability that but for the error, he would not have entered
a guilty plea.” Thompson, 770 F.3d at 696 (alteration added) (quotation marks
omitted), citing United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).
Schneider cites other circuits’ cases indicating that a Rule 11(c)(1) error
necessarily affects substantial rights. See Kraus, 137 F.3d at 457 (“[I]nsofar as
judicial intervention in the negotiation of a plea agreement is concerned, the
possibility of harmless error may be more theoretical than real.”). See also United
States v. Bradley, 455 F.3d 453, 463 (4th Cir. 2006) (“[I]t will be rare that a clear
violation of Rule 11’s prohibition against judicial involvement in plea negotiations
does not affect substantial rights.”), citing United States v. Miles, 10 F.3d 1135,
1141 (5th Cir. 1993) (“The government does not cite, nor does our research find, one
instance in which a federal court has found judicial participation in plea negotiations
to be harmless error.”).
The cases Schneider cites were decided before the Supreme Court’s decision
in United States v. Davila, 569 U.S. 597 (2013). The Court there ruled that Rule
11(c)(1) violations are not structural error. The question presented was whether “the
violation of Rule 11(c)(1) by the Magistrate Judge warranted automatic vacatur of
Davila’s guilty plea.” Davila, 569 U.S. at 600. The Court’s answer: “Nothing
in Rule 11’s text . . . indicates that the ban on judicial involvement in plea
discussions, if dishonored, demands automatic vacatur of the plea without regard to
case-specific circumstances.” Id. at 609. The Supreme Court emphasized that the
“class of errors that trigger automatic reversal” is “very limited,” and that
“Rule 11(c)(1) error does not belong in that highly exceptional category.” Id. at 611
(quotation mark omitted). See also Dominguez Benitez, 542 U.S. at 81, n.6
(“Dominguez does not argue that either Rule 11 error generally or the Rule 11 error
here is structural . . . . The argument, if made, would not prevail.”); United States v.
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Coleman, 961 F.3d 1024, 1028 (8th Cir. 2020) (rejecting defendant’s argument that
the Rule 11 violation “‘affect[ed] [his] substantial rights as a per se matter’ and thus
constitute[d] structural error that require[d] automatic reversal” (alterations added)).
Courts reviewing Rule 11(c)(1) errors are to examine the “particular facts and
circumstances” to determine “whether it was reasonably probable that, but for the
[district court’s] exhortations, [the defendant] would have exercised his right to go
to trial.” Davila, 569 U.S. at 611-12 (alterations added).
Following Davila, this court in Thompson “look[ed] at the entire record” to
determine whether the defendant satisfied his burden. Thompson, 770 F.3d at 697,
citing Davila, 569 U.S. at 612. Crucial to this court’s analysis was the fact that the
district court ensured that Thompson knew that it could impose a more severe
sentence than the one suggested by its earlier improper comments:
[E]vents on the day Thompson pleaded guilty . . . indicate . . . that the
Rule 11 errors [did not] influence his decision to plead guilty . . . . [H]e
was informed of th[e] fact . . . [that] he still faced a possible sentence
of life imprisonment . . . in the plea agreement he signed in open court
at the hearing. The court discussed the plea agreement with him at the
hearing, and Thompson stated under oath he understood the maximum
and minimum penalties he faced if he pleaded guilty or was convicted
after trial . . . . As for Thompson’s assertion that “the court[’s
comments] caused him to believe he might be sentenced to only 12
years,” the district court expressly told Thompson that his sentence
could be longer: “The Court could still sentence you to a higher amount
but the least that they could sentence you to is that 12 years.”
Id. at 696-97 (alterations added). Based on this colloquy, this court found no
reasonable probability that, but for the Rule 11 errors, Thompson would not have
pled guilty. Id. at 698, citing Todd, 521 F.3d at 896 (defendant could not show that
his substantial rights were affected because “[a]lthough [he] may have begun the
plea hearing under the belief that he would be sentenced to a term of five years’
imprisonment” due to a plain error under Rule 11, “the district court made clear at
two different points in the hearing that the sentence could be ‘harsher’ than, and ‘far
in excess’ of, five years’ imprisonment”).
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At the second change-of-plea hearing here, the district court confirmed that
Schneider was aware that the agreement’s recommendations were not binding, that
the district court could impose a sentence above the range it calculated at the first
change-of-plea hearing, and that the maximum sentence was life. While Schneider
may have hoped for a sentence within the range discussed at the first hearing, this
colloquy shows that he knew the “plea agreement he entered offered that possibility,
but not that guarantee.” Id. Because Schneider repeatedly acknowledged that the
district court could impose a life sentence despite its comments at the first change-
of-plea hearing, he has failed to show a reasonable probability that he would not
have pled guilty but for those comments. Id. at 696, citing Dominguez Benitez, 542
U.S. at 82.
Schneider stresses that his case is distinguishable from Thompson because he
mentioned his reliance on the district court’s improper comments at sentencing.
Compare id. at 698 (“[E]ven during the sentencing hearing, Thompson failed to give
any indication that the district court had lead [sic] him to expect a particular sentence
in exchange for pleading guilty.”) with Transcript of Sentencing Hearing, United
States v. Schneider, No. 1:19-cr-00124, DCN 48 at 39 (N.D. Jan. 18, 2022) (“I think
Mr. Schneider was in part relying on that he’d be sentenced under a 37 looking at
210 to 262 months . . . . And in light of that, we would request that the Court proceed
with a range consistent with the Plea Agreement and consistent with the Sentencing
Guideline range discussed at the end of the initial plea hearing . . . .”).
While this distinction does favor Schneider, other factors discussed by
Thompson do not. Temporal proximity favored the defendant in Thompson.
Thompson, 770 F.3d at 696-97 (“Thompson told the district court three times he
wanted to go to trial. After a brief recess, Thompson informed the court he wanted
to plead guilty. The plea hearing immediately followed. The temporal proximity
between a court’s improper participation in plea negotiations and a plea hearing is a
circumstance that may support a finding of prejudice.”). In this case, six months
passed between the court’s improper participation (at the first change-of-plea
hearing in March) and Schneider’s guilty plea (at the second change-of-plea hearing
in September).
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Other factors that favored affirmance in Thompson also favor affirmance here.
The second plea agreement offered Schneider the benefit of a recommended
sentence at the bottom of the expected guideline range. Id. at 697 (“[W]e note that
at the time he entered it, the plea agreement did offer Thompson a benefit: a lower
mandatory minimum sentence on Count 1, and the opportunity to receive less than
a mandatory life sentence on Count 2.”). And like Thompson, Schneider did not
move to withdraw his guilty plea after the PSR calculated a higher guideline range.
Id. at 698 (“And, significantly, Thompson never sought to withdraw his guilty plea,
because of Rule 11 errors or for any other reason, even after he received a copy of
the PSR.”).
Another consideration in Thompson was the defendant’s ability to use the
Rule 11 violation to obtain multiple bites at the apple. See Thompson, 770 F.3d at
698 (“Thompson understandably hoped for a sentence of less than life imprisonment
after pleading guilty and waiving his right to trial. The plea agreement he entered
offered that possibility, but not that guarantee.”). This case illustrates the potential
for abuse of a structural-error approach to Rule 11(c)(1): if the defendant finds the
sentence suggested by the improper comments unacceptable, he could object and get
reassignment; if the suggested sentence is acceptable, the defendant could not object
and hope the court imposes the suggested sentence; if the court imposes a higher
sentence, the defendant could appeal and get vacatur, remand, and reassignment.
See also Todd, 521 F.3d at 897 (“[I]t was only after the district court imposed a
sentence far in excess of five years (as it cautioned was possible), and Todd
recognized that his plea agreement did not produce the benefit for which he had
hoped, that Todd sought to set aside his guilty plea based on non-compliance
with Rule 11. Accordingly, we conclude that relief is not warranted.”).
Although at least one factor favors Schneider, the particular facts and
circumstances in the entire record here do not show that the Rule 11 violation
affected Schneider’s substantial rights. See Thompson, 770 F.3d at 696 (defendant’s
substantial rights not affected even though one factor “suggest[ed] that the Rule 11
errors may have influenced his decision to plead guilty” (alteration added)). Accord
United States v. Davila, 749 F.3d 982, 995 (11th Cir. 2014) (“several factors . . .
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convinced us that, in light of the whole record, [the defendant] had failed to meet his
burden” of showing that he would not have pled guilty but for the Rule 11(c)(1)
violation, despite one factor “tend[ing] to suggest that the remarks precipitated the
plea” (alterations added)), describing United States v. Castro, 736 F.3d 1308, 1314
(11th Cir. 2013); United States v. Ushery, 785 F.3d 210, 222 (6th Cir. 2015) (“two
potentially negative factors” indicating that the defendant would not have entered a
guilty plea but for the Rule 11(c)(1) violation were “substantially neutralized” by
other facts and circumstances).
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The judgment is affirmed.
GRUENDER, Circuit Judge, concurring in part and concurring in the judgment.
I agree with the court that Schneider cannot establish that the alleged Rule
11(c)(1) error by the district court affected his substantial rights. However, as the
court did in United States v. Thompson, I would “[a]ssum[e] for the sake of analysis”
that there was a plain error. See 770 F.3d 689, 696 (8th Cir. 2014). It is not necessary
to decide this question, and our decision in Thompson does not support a finding of
plain error in this case. In the absence of decisions of this court supporting a finding
of plain error under these circumstances, I am reluctant to adopt out-of-circuit
precedent on the question where it is not necessary to resolve the case before us.
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