In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1089
DARRELL M. SCHNEIDER,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin
No. 15-CV-709 — William C. Griesbach, Chief Judge.
____________________
ARGUED JULY 6, 2017 — DECIDED JULY 19, 2017
____________________
Before POSNER, KANNE, and SYKES, Circuit Judges.
PER CURIAM. Darrell Schneider pleaded guilty to sexually
abusing his minor daughter on the reservation of the tribe to
which he belongs. See 18 U.S.C. § 2243(a)(1). The district
court sentenced him below the guidelines range to
96 months’ imprisonment, and we affirmed his conviction
and sentence on direct appeal. See United States v. Schneider,
600 F. App’x 457 (7th Cir. 2015). Schneider then filed this col-
lateral challenge under 28 U.S.C. § 2255. He principally ar-
2 No. 16-1089
gues that his trial lawyer was ineffective for advising him
that he met the statutory elements of the offense of sexual
abuse of a minor and for not explaining that his prior con-
duct could be considered during sentencing. The court de-
nied Schneider’s § 2255 motion. Because Schneider has not
shown that his lawyer’s performance was deficient or affect-
ed his decision to plead guilty, we affirm the district court’s
judgment.
In May 2011, when Schneider’s daughter M.S. was
15 years old, she told a cousin that Schneider had sexually
assaulted her the previous month. M.S. said that Schneider
gave her alcohol and waited for her to pass out; when she
awoke she saw that he had pulled down her pants and was
trying to place his penis in her buttocks as she pushed him
away. She added that, since she was 8 or 9 years old, Schnei-
der regularly had assaulted her when he consumed alcohol
or cocaine. She had in fact accused Schneider in 2009 of hav-
ing vaginal intercourse with her then, but she later recanted
that accusation, and the authorities took no action against
Schneider at that time.
After the cousin relayed M.S.’s accusations to the police,
Schneider was charged, but the charges changed over time.
Initially he was charged by criminal complaint with two fed-
eral crimes. The first count, abusive sexual contact, 18 U.S.C.
§ 2244(a)(2), carries a maximum sentence of three years in
prison and relates to the 2011 assault. The second count,
sexual abuse of a minor, § 2243(a), carries a maximum sen-
tence of 15 years’ imprisonment and relates to the assault
that M.S. first reported in June 2009. Later a grand jury in-
dicted Schneider on two counts of sexual abuse under
18 U.S.C. § 2242(2). The first count charged that in June 2009
No. 16-1089 3
Schneider “engaged in, and attempted to engage in,” uncon-
sented “penetration and attempted penetration of M.S.’s
vulva by Schneider’s penis.” The second count charged that
in April 2011 Schneider had penetrated or attempted to pen-
etrate “M.S.’s vulva and anus” with his penis. The two
§ 2242(2) counts exposed Schneider to lengthier prison terms
than he had faced under the complaint: Sexual abuse of a
minor under § 2243(a) carries a possible sentence of up to
15 years, while sexual abuse under § 2242(2) carries a possi-
ble life sentence.
Facing the possibility of two life sentences, Schneider ac-
cepted a plea offer. In exchange for dismissal of the two
§ 2242(2) counts in the indictment, Schneider agreed to plead
guilty to an information charging him with a single count
under § 2243(a) based only on the April 2011 assault. Specifi-
cally, the information charged that in April 2011 Schneider
engaged in a sexual act involving contact between his penis
and the vulva of a minor.
The parties eventually revised the plea agreement to re-
solve two discrepancies. First, the agreement initially stated
that during the assault M.S. “could feel that Schneider was
attempting to place his penis in her buttocks,” and that “his
penis did make contact with her buttocks.” But the reference
to “buttocks” was inconsistent with the information, which
referred to her “vulva.” Second, a “sexual act” is defined in
18 U.S.C. § 2246(2)(A) as penetration “between the penis and
the vulva or the penis and the anus,” whereas contact be-
tween the penis and the “buttocks” amounts only to “sexual
contact,” see id. § 2246(3). And a conviction for sexual abuse
or sexual abuse of a minor requires a sexual act, see § 2242(2);
§ 2243(a). To resolve these discrepancies the parties agreed
4 No. 16-1089
to amend both the information and plea agreement to refer
to contact between Schneider’s penis and M.S.’s “anus,”
which is sexual abuse of a minor under § 2243(a).
At the plea hearing, the district court asked Schneider if
he understood the plea changes, and Schneider said that he
did. The court also explained to Schneider the potential pen-
alties he faced. Although Schneider’s attorney had estimated
a guidelines range of 37 to 46 months’ imprisonment, the
court warned Schneider five times that under § 2243(a) it
could impose a sentence as high as 15 years’ imprisonment.
The court also warned Schneider that if the guidelines range
turned out to be “closer to five years or above,” that, by it-
self, would not be a reason for Schneider to withdraw his
guilty plea. Schneider said he understood this, and the dis-
trict court accepted his guilty plea.
After a change in appointed lawyers, Schneider moved to
withdraw his guilty plea. This motion followed the release of
the presentence report, which recommended that Schneider
receive a five-level upward adjustment as a “repeat and
dangerous sex offender against minors,” U.S.S.G. § 4B1.5.
Schneider’s attorney argued that Schneider did not under-
stand when he pleaded guilty that the court could consider
M.S.’s allegations about prior sexual assaults. The attorney
also asserted that M.S. had said that she had lied about the
sexual assaults, thus giving Schneider what the attorney
called a credible claim of innocence.
The court held an evidentiary hearing on the motion.
Schneider testified that he had pleaded guilty because he
feared that, if he didn’t, the government might charge him
under 18 U.S.C. § 2241(c) for assaulting M.S. before she was
12, thereby exposing him to a mandatory minimum sentence
No. 16-1089 5
of 30 years in prison. But he also insisted that he would not
have pleaded guilty to the § 2243(a) charge if he had known
that his prior assaults could be considered during sentenc-
ing. The prosecutor attacked Schneider’s credibility by ask-
ing him about numerous recorded phone conversations from
jail with M.S. In these calls, Schneider pressured M.S. to re-
cant her accusations. When the prosecutor asked why
Schneider violated a no-contact order by repeatedly calling
M.S., he professed that he “never knew who [he] was talking
to” when he called home. In fact, Schneider had addressed
M.S. by name during some of the conversations.
The government also presented testimony from Steven
Richards, the lawyer who represented Schneider at the plea
hearing, about his advice to Schneider. Richards said he
counseled Schneider that the government likely would rec-
ommend at least a 10-year sentence. Richards did not recall
whether he told Schneider that he could receive a five-level
upward adjustment under § 4B1.5. But he did advise
Schneider that the assaults likely would be disclosed in the
presentence report that the court received and that he would
not be able to withdraw his guilty plea if the guideline range
was higher than the 37 to 46 months that Richards had esti-
mated. He also concurred that Schneider pleaded guilty to
avoid the 30-year mandatory minimum that he would face if
he were charged under 18 U.S.C. § 2241.
The district court denied the motion to withdraw and
sentenced Schneider. It ruled that Schneider’s guilty plea
had been voluntary and that he had manipulated his daugh-
ter into recanting her charges of sexual abuse. The court
found Schneider’s credibility “very poor” in light of the rec-
orded phone conversations that proved he lied about not
6 No. 16-1089
knowing it was M.S. he spoke with over the phone. On the
other hand, the court found Richards “quite credible,” and it
accepted that Schneider pleaded guilty to the § 2243(a)
charge to avoid the 30-year mandatory minimum for a
charge under 18 U.S.C. § 2241. Schneider’s unsuccessful bid
to withdraw his guilty plea cost him a three-level reduction
for acceptance of responsibility, increasing his guidelines
range from 70 to 87 months to 97 to 121 months. The court
imposed a below-guidelines sentence of 96 months’ impris-
onment.
On direct appeal Schneider, through a third appointed
lawyer, argued that his guilty plea was involuntary. The
lawyer asserted that Schneider did not understand to which
crime he was admitting, citing the last-minute edits to the
information and plea agreement. This court rejected Schnei-
der’s claim. It explained that, although “the manner in which
the government proceeded was not ideal,” there was “no
support in the record outside of his appointed lawyer’s as-
sertions that he did not understand the charges against
him.”
This collateral challenge to his conviction, based on a
claim of ineffective assistance of counsel, followed. Schnei-
der argues that Richards rendered ineffective assistance at
the plea hearing by not warning him that his prior conduct
could be considered during sentencing and by failing to ex-
plain the “inconsistencies in the government’s charges.”
Schneider also faults the attorneys who represented him lat-
er at sentencing and on direct appeal for not arguing that
Richards was ineffective during plea negotiations. The dis-
trict court denied Schneider’s challenge. It reasoned that
Schneider is barred from relitigating the claims he lost or
No. 16-1089 7
could have raised on direct appeal, and that there is no merit
to Schneider’s claim that his various attorneys rendered inef-
fective assistance.
In this court Schneider, now represented by a fourth
lawyer, argues as he did in the district court that he received
ineffective assistance from each of his prior attorneys. He
first faults Richards for allowing him to “plead to a crime
that the admitted facts did not sustain.” To establish ineffec-
tive assistance, he must show not only that his counsel’s per-
formance fell below an objective standard of reasonableness
but also that there is a “reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Lee v. United States,
137 S. Ct. 1958, 1965 (2017) (quoting Hill v. Lockhart, 474 U.S.
52, 59 (1985)). Schneider has not met this exacting standard.
Schneider’s argument focuses on the technical difference
between “buttocks” and “anus.” Recall that a “sexual act” is
defined as “contact between the penis and the vulva or the
penis and the anus.” 18 U.S.C. § 2246(2)(A). Recall also that
in Richard’s original plea agreement he admitted that in
April 2011 he attempted to “place his penis in M.S.’s but-
tocks.” Because sexual abuse of a minor requires a sexual act
and because contact with the “buttocks” does not meet the
statutory definition of a sexual act, Schneider concludes that
Richards should have advised him to plead guilty to the less
serious offense of abusive sexual contact, 18 U.S.C. § 2244.
For two reasons Schneider cannot show prejudice. First,
the premise of the argument—that he pleaded to a crime
(contact with M.S.’s “anus”) that is unsupported by the ad-
mitted facts—is wrong. The admitted facts are in the revised
plea agreement, and in that agreement Schneider admits that
8 No. 16-1089
he attempted to rape his daughter by placing his penis in her
“anus.” Those facts are sufficient for a conviction for sexual
abuse of a minor See 18 U.S.C. §§ 2243(a)(1), 2246(2)(A);
Gaiskov v. Holder, 567 F.3d 832, 838 n.4 (7th Cir. 2009) (ex-
plaining that § 2243 “prohibits intercourse with a person be-
tween the ages of twelve and fifteen who is at least four
years younger than the defendant.”)
Second, Schneider cannot show that he pleaded guilty
because he thought that the government could prove only
contact with M.S.’s “buttocks.” He testified at the hearing on
his motion to withdraw his guilty plea that he pleaded guilty
largely to avoid a charge of aggravated sexual abuse of a
minor under 12 and its mandatory minimum of 30 years’
imprisonment, see 18 U.S.C. § 2241(c). The district court cred-
ited that rationale, and we upheld its judgment on direct ap-
peal. The district court’s finding, followed by this court’s af-
firmance, is law of the case. See Peoples v. United States,
403 F.3d 844, 849 (7th Cir. 2005) (applying law-of-the-case
doctrine to collateral proceedings). In any event it is implau-
sible that Schneider would have risked a minimum 30-year
sentence in the hope that a trier of fact would conclude that
the evidence of placing his penis “in M.S.’s buttocks” did not
also show that he attempted to penetrate her anus.
Schneider also unpersuasively faults Richards for not
telling him that the sentencing court could consider evidence
of his unadmitted prior assaults in calculating the guidelines
range. The district court credited Richards’s testimony that
he advised Schneider that the assaults would be disclosed in
the presentence report provided to the court. And even if
this court were to set that testimony aside, once again
Schneider cannot show prejudice. Both Richards and the dis-
No. 16-1089 9
trict court warned Schneider that the guidelines could be
higher than Richards’s prediction, and the district judge told
Schneider five times during the plea hearing that he could
receive up to 15 years’ imprisonment.
Finally, Schneider argues that the attorneys who repre-
sented him during sentencing and on direct appeal rendered
ineffective assistance because they did not raise the issue of
Richards’s supposed ineffectiveness. But because Schnei-
der’s complaints about Richards’s performance are meritless,
it necessarily follows that his other lawyers were not ineffec-
tive in declining to argue otherwise.
AFFIRMED