United States of America v. Justin James Schneider

United States Court of Appeals
For the Eighth Circuit
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No. 24-3350
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United States of America
Plaintiff - Appellee
v.
Justin James Schneider
Defendant - Appellant
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No. 25-1534
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United States of America
Plaintiff - Appellee
v.
Justin James Schneider
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: December 19, 2025
Filed: June 11, 2026
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Before LOKEN, SMITH, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Justin Schneider was convicted of simple assault of a federal officer, 18
U.S.C. § 111(a), and of being a felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1). He was sentenced to 163 months in prison. We affirm his convictions,
but we vacate his sentence and remand for resentencing.
Schneider’s wife called the police and told them that he was suicidal and
wanted the police to kill him. An officer spotted his truck and tried to pull him over,
but Schneider fled and drove into a field. When he finally stopped and got out of
his truck, he was holding a revolver, pointing it at the ground. Schneider did not
comply with commands to drop the gun and get on the ground. Instead, he told the
officers to shoot him. After arguing with the officers for a while, Schneider got back
into his truck and sped off.
Lieutenant Wayland Bad Hand, an officer with the Bureau of Indian Affairs,
was monitoring the situation from his police cruiser, which was parked in the right-
side lane of a two-lane highway. When Schneider turned his truck onto the road, he
oversteered into some grass. He corrected, but this put him on a collision course
with Lieutenant Bad Hand and his police cruiser. At the last moment, Schneider
swerved back into the grass, narrowly missing both.
Officers pursued. Schneider pulled into a parking lot and got out of his truck
with the revolver pointed at the ground. He did not obey Lieutenant Bad Hand’s
command to drop the gun, so Lieutenant Bad Hand shot him and then arrested him.
Schneider was charged with forcibly resisting, opposing, impeding,
intimidating, or interfering with Lieutenant Bad Hand while using a dangerous
weapon (the revolver), 18 U.S.C. § 111(a) and (b), and with being a felon in

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possession of a firearm, 18 U.S.C. § 922(g)(1).1 Schneider and the Government
reached an agreement where he would plead guilty to the felon-in-possession charge
and the other charge would be dismissed. The plea agreement stipulated an offense
level of 26 but clarified that the stipulation was “not binding upon the Court.” At
the change of plea hearing, the district court was concerned that the stipulation made
the agreement binding under Federal Rule of Criminal Procedure 11(c)(1)(C) and
said it intended to reject the agreement unless the language was changed. Schneider
asked for a continuance so he and the government could rework the agreement,
which the court granted. But Schneider eventually backed out of plea negotiations
and decided to stand trial.
The week before trial, the court selected three juries on the same day.
Schneider’s jury was scheduled to be selected second, but he asked permission to
attend the first jury selection too. The court denied his request, but his lawyer was
allowed to observe. During the first jury selection, the court introduced Schneider’s
case by announcing his name and charges.2 Five of the jury pool members from the
first jury selection also participated in Schneider’s jury selection.
1 Schneider moved to dismiss the felon-in-possession charge, arguing that 18
U.S.C. § 922(g)(1) violates the Second Amendment—both facially and as applied.
The district court denied his motion, and he preserves the argument on appeal. Our
precedent precludes its success. United States v. Jackson, 110 F.4th 1120, 1125 (8th
Cir. 2024); United States v. Cunningham, 114 F.4th 671, 675 (8th Cir. 2024).
2 Schneider asks us to either supplement the record with or take judicial notice
of the transcript from the first jury selection. Federal Rule of Evidence 201(b) allows
us to take judicial notice of court records for the purpose of noting undisputed
adjudicative facts. Insulate SB, Inc. v. Advanced Finishing Sys., Inc., 797 F.3d 538,
543 n.4 (8th Cir. 2015); see also Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442
F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial notice of sealed documents because
they were “readily verifiable”). We thus grant Schneider’s motion to take judicial
notice of the jury selection transcript and deny his motion to supplement the record
as moot.

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The case was tried, and Schneider twice moved for a judgment of acquittal on
both counts. The district court denied both motions. The jury found Schneider not
guilty of forcibly resisting Lieutenant Bad Hand with the revolver but guilty of
simple assault against Lieutenant Bad Hand, a lesser included offense. It also found
Schneider guilty of being a felon in possession of a firearm.
At sentencing, the district court applied a 4-level enhancement, U.S.S.G.
§ 2k2.1(b)(6)(B) (2024) (amended 2025), because it found by a preponderance of
the evidence that Schneider resisted a federal officer with a dangerous weapon.
Schneider’s Guidelines range was 151 to 188 months in prison, and the court
imposed a 151-month sentence for the felon-in-possession conviction and a
consecutive 12-month sentence for simple assault.
Schneider first argues that the district court abused its discretion when it
“rejected” his plea agreement. See United States v. Nicholson, 231 F.3d 445, 451
(8th Cir. 2000) (standard of review). But the district court never did that—it told the
parties it would reject it if the stipulation language was not changed. Before the
court could start the required process for rejecting a plea agreement, see Fed. R.
Crim. P. 11(c)(5), Schneider moved to continue the change of plea hearing. Since
there was no rejection, there is nothing for us to review. Cf. United States v. Tiger,
223 F.3d 811, 813–14 (8th Cir. 2000) (dismissing an appeal challenging the
exclusion of evidence because, although the district court indicated that it intended
to exclude the evidence, the defendant withdrew the evidence before the court could
make a ruling).
Schneider next argues that the district court violated his Fifth and Sixth
Amendment right to be present at trial when he was not allowed at the first jury
selection. See United States v. Smith, 771 F.3d 1060, 1063 (8th Cir. 2014); Gomez
v. United States, 490 U.S. 858, 873 (1989). Even if the district court was mistaken,
any abuse of discretion was harmless beyond a reasonable doubt. Smith, 771 F.3d
at 1063 (“We review whether a trial court conducted a proceeding in violation of
[the] defendant[’s] right to be present during every stage of trial under an abuse of

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discretion standard.” (citation omitted)); Chapman v. California, 386 U.S. 18, 24
(1967) (“[B]efore a federal constitutional error can be held harmless, the court must
be able to declare a belief that it was harmless beyond a reasonable doubt.”). The
district court’s discussion of Schneider’s case at the first jury selection was short and
superficial. Although Schneider was not there to see how the potential jurors reacted
when his name and charges were first announced, his lawyer was and has not alleged
that any of the jurors reacted negatively.3
Turning to the denial of his motions for judgment of acquittal, Schneider
argues that the evidence was insufficient to support his simple assault conviction.
We review the court’s decisions de novo, “evaluating the evidence in the light most
favorable to the verdict and drawing all reasonable inferences in its favor.” United
States v. Parker, 871 F.3d 590, 600 (8th Cir. 2017) (citation omitted). We will
reverse a verdict “only if no reasonable jury could have found the defendant guilty
beyond a reasonable doubt.” United States v. Ways, 832 F.3d 887, 894 (8th Cir.
2016).
To be guilty of simple assault under § 111, a defendant must “threat[en] or
display . . . physical aggression toward [an] officer as to inspire fear of pain, bodily
harm, or death.” United States v. Wilkins, 25 F.4th 596, 599 (8th Cir. 2022) (citation
omitted). The defendant must also “entertain the criminal intent to do the acts therein
specified.” Id. (cleaned up). Schneider argues that no reasonable jury could find
that he attempted or threatened to injure Lieutenant Bad Hand. We disagree.
Before speeding away, Schneider was acting aggressively, brandishing his
revolver, and asking police to shoot him. A dash cam video shows that Schneider
3 Schneider asked the district court to supplement the record with the transcript
from the first jury selection and the jury lists from both proceedings, but the district
court denied the motion. We have taken judicial notice of the transcript, and
consideration of the jury lists would not have changed the resolution of this issue.
Accordingly, any error in denying the motion was harmless. See C.B. ex rel. B.B. v.
Special Sch. Dist. No. 1, 636 F.3d 981, 992 n.1 (8th Cir. 2011).

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turned his wheels directly at and drove toward Lieutenant Bad Hand and his police
cruiser. Although Schneider eventually swerved, a reasonable jury could find that
he intentionally put Lieutenant Bad Hand in fear of bodily harm.
Finally, Schneider argues that the district court procedurally erred when it
applied a 4-level enhancement for “possess[ing] any firearm or ammunition in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B) (2024)
(amended 2025). Schneider was acquitted of resisting a federal officer with a deadly
weapon, and his simple assault conviction is a misdemeanor. The district court
nevertheless applied the enhancement because it found by a preponderance of the
evidence that Schneider committed the felony that the jury acquitted him of.
Because Schneider did not object on this basis below, we review for plain error.
United States v. Ridings, 75 F.4th 902, 906 (8th Cir. 2023). “Under plain error
review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects
substantial rights.” United States v. Isler, 983 F.3d 335, 341 (8th Cir. 2020) (citation
omitted).
As the Government concedes, the district court plainly erred when it
considered acquitted conduct and applied the 4-level enhancement. Schneider was
sentenced on November 4, 2024. Three days earlier, the Guidelines were amended
to say that “[r]elevant conduct does not include conduct for which the defendant was
criminally charged and acquitted in federal court.” U.S.S.G. § 1B1.3(c). Courts
must use the Guidelines in effect at the time the defendant is sentenced. U.S.S.G.
§ 1B1.11; see United States v. Barker, 556 F.3d 682, 689–90 (8th Cir. 2009) (finding
“significant procedural error” where the district court used the wrong version of the
Guidelines, resulting in an improperly calculated Guidelines range).
The error affected Schneider’s substantial rights. Isler, 983 F.3d at 343 (“To
demonstrate an effect on substantial rights, [the defendant] must show a reasonable
probability that but for the error, he would have received a more favorable sentence.”
(citation omitted)). His Guidelines range with the 4-level enhancement was 151 to
188 months. Without the 4-level enhancement, his range would have been 110 to

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137 months. The district court imposed a total sentence of 163 months, which was
within the initial Guidelines calculation. It did not suggest that it would impose a
163-month sentence regardless of the Guidelines range. Accordingly, there is at
least a reasonable probability that the district court would have imposed a lesser total
sentence had it known that 110 to 137 months was Schneider’s appropriate
Guidelines range. Molina-Martinez v. United States, 578 U.S. 189, 198 (2016).
We affirm Schneider’s convictions, vacate his sentence, and remand for
resentencing consistent with this opinion.
LOKEN, Circuit Judge, concurring in the judgment.
In United States v. Watts, the Supreme Court “said that there is no ‘prohibition
against considering certain types of evidence at sentencing,’ including ‘uncharged
or acquitted conduct.’” McClinton v. United States, 143 S. Ct. 2400, 2405 (2023)
(Alito, J., concurring in the denial of certiorari), quoting 519 U.S. 148, 152–55
(1997). Our court held the same in United States v. Whiting, 522 F.3d 845, 850 (8th
Cir. 2008). This long-debated issue was not decided by the Court in McClinton.
On November 1, 2024, the Sentencing Commission amended USSG 1B1.3(c)
to provide that “[r]elevant conduct does not include conduct for which the defendant
was criminally charged and acquitted in federal court, unless such conduct also
establishes, in whole or in part, the instant offense of conviction.” The government
initially challenged the Commission’s authority to promulgate a Guidelines
amendment that overrules prior Supreme Court and Eighth Circuit law, but in this
case the government chose to concede that amended USSG 1B1.3(c) was the
governing Guideline when Schneider was sentenced three days later and the district
court committed plain error. I agree we must therefore remand for resentencing.
I do not object to our panel accepting the government’s concession as
establishing the governing Guidelines law for purposes of our plain error review in
this case. But the underlying acquitted-conduct issue that was not decided in

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McClinton remains undecided and now includes the additional significant issue
whether the Sentencing Commission exceeded the limited sentencing authority
delegated by Congress when it substituted its own opinion on the question, which
would overrule contrary Supreme Court and Eighth Circuit authority. We have
heretofore avoided that question by holding that “the Guideline does not prohibit a
court from considering acquitted conduct when analyzing the factors from
§ 3553(a).” United States v. Ware, 141 F.4th 970, 974 n.2 (8th Cir. 2025). Other
circuits that have considered the issue agree. See United States v. Texidor, 164 F.4th
248, 254 (3d Cir. 2026); United States v. Ralston, 110 F.4th 909, 921 (6th Cir. 2024);
United States v. Pharms, No. 24-14191, 2026 WL 311607, at *4 (11th Cir. Feb. 5,
2026).
What the amended Guideline does prevent is consideration of acquitted
conduct in calculating the advisory guidelines range, which is squarely within the
Commission’s delegated authority. So a district court must ignore acquitted conduct
while calculating the range, but then has discretion to use acquitted conduct to
sentence the defendant within, above, or below the guidelines range. Here, the
government’s concession was properly limited to the facts of this case. Thus, this
decision should not be interpreted as deciding the broader important question left
open in McClinton.
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