In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-1070 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

VINCENT MERRILL, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16-cr-00114-1 — John Z. Lee, Judge. 

____________________ 

ARGUED DECEMBER 14, 2021 — DECIDED JANUARY 18, 2022 

____________________ 

Before SYKES, Chief Judge, and HAMILTON and ST. EVE,

Circuit Judges. 

HAMILTON, Circuit Judge. Appellant Vincent Merrill 

pleaded guilty to producing and possessing child 

pornography. He appeals the denial of his motion to 

withdraw his pleas. He argues that he received ineffective 

assistance from his former attorneys in the form of an 

erroneous explanation of the elements of the production 

offense. As explained below, Merrill’s attorneys’ advice was 
2 No. 21-1070 

sound, and in any event he has not shown prejudice from the 

supposedly erroneous advice. We therefore affirm Merrill’s 

convictions. 

I. Facts and Procedural History

Merrill pressured several young girls, each twelve or 

thirteen years old, to take and send him sexually explicit 

photographs of themselves. In each case, he met the child on 

an internet chat site and engaged her in text-message 

conversations that became sexual. Central to this appeal are 

his interactions with a child, Minor A, who began chatting 

online with Merrill when she was thirteen and Merrill was 

twenty-five. By text message, Merrill asked many times for

sexually explicit “pics.” In response, Minor A texted him 

photographs matching his descriptions. Over about eight 

months, Merrill persuaded Minor A to take at least six 

sexually explicit photographs of herself and to send them to 

him in text messages. He knew that she was younger than 

eighteen years old. 

Merrill was indicted in February 2016 for two counts of 

producing child pornography, both involving Minor A, 

18 U.S.C. § 2251(a); two counts of receiving child 

pornography, involving Minor A and another minor victim, 

18 U.S.C. § 2252A(a)(2)(A); and one count of possessing child 

pornography of Minor A and four other minor victims, 

18 U.S.C. § 2252A(a)(5)(B). He eventually pleaded guilty to 

one count each of producing and possessing child 

pornography with respect to Minor A. His written plea 

agreement included transcripts of several text-message 

exchanges in which he asked Minor A for sexually explicit 

photographs and she sent them. The agreement specified that 

Merrill “knowingly used, persuaded, induced and enticed 
No. 21-1070 3 

Minor A to engage in sexually explicit conduct that involved 

lascivious exhibition of Minor A’s genitalia, for the purposes 

of having Minor A take a photograph of the sexually explicit 

conduct.” 

At the change of plea hearing, the district court placed 

Merrill under oath and engaged in a thorough colloquy under 

Rule 11 of the Federal Rules of Criminal Procedure. Merrill 

testified that he had read the plea agreement, discussed it 

with defense counsel, and understood it. The government 

recited the factual basis as set forth in the plea agreement, 

including: “At defendant’s direction Minor A took 

photographs of herself that involved the lascivious exhibition 

of her genitals . ... And then she sent those photographs to the 

defendant via text message at his direction.” When asked 

whether the government’s facts were accurate, Merrill 

replied: “Yes I did do that. I just don’t remember because it 

was so long ago. But ... it says I did it because it was on my 

phone.” Defense counsel interjected to explain that, based on 

his conversations with Merrill, “it’s not that he doesn’t 

remember anything about the offense. It’s that he doesn’t 

remember certain details.” The judge asked Merrill whether 

he remembered “soliciting photographs and possessing the 

types of photographs that are set forth in the plea agreement.” 

Merrill confirmed that he did.

Days before the scheduled sentencing hearing, new 

counsel appeared for Merrill. His new counsel moved to 

withdraw his guilty pleas. Merrill’s motion and supplemental 

affidavit asserted that his two former attorneys, Pablo 

deCastro and Summer McKeivier, “never explained to him 

what it means to produce child pornography under the law” 

and “never explained what the elements of the production 
4 No. 21-1070 

charge were or what the government was required to prove 

to establish his guilt.” He argued that these omissions 

constituted ineffective assistance and caused him to plead 

guilty unknowingly and involuntarily. (He made other 

arguments but has not pursued them in this appeal.) 

The district court held an evidentiary hearing at which 

Merrill and attorneys deCastro and McKeivier all testified. 

Merrill swore that neither attorney had ever explained to him 

the elements of the production charge. Moreover, he 

continued, they both said that he could be found guilty of 

production solely because he “asked for the photo and 

received the photo and it was on my phone,” and that he 

would not have pleaded guilty if he had not believed that 

“merely having and asking for the photo made me guilty of 

production.”

Merrill’s former lawyers each testified to having explained 

to Merrill the differences among the three charges and how 

the evidence established each element of the production 

charge. Specifically, each told Merrill that he could be 

convicted of production based on proof that he had asked the 

minors to take and send the sexually explicit photographs and 

that the minors had done so at his request. They had also 

discussed the text-message transcripts on the phone with 

Merrill (although he did not receive copies of the transcripts) 

and explained how the government could use them to prove 

each element of the production charge.

The district judge denied Merrill’s motion to withdraw his 

pleas. The judge credited the attorneys’ testimony and found 

that Merrill’s contrary assertions that his lawyers never explained the elements of the production charge were “simply 

not credible.” The judge also observed that Merrill’s assertion 
No. 21-1070 5 

that he received ineffective assistance was undermined by his 

testimony at the change-of-plea hearing that he was satisfied 

with their representation and that he had read and understood the plea agreement.

II. Analysis

Merrill renews his ineffective-assistance argument on 

appeal and adds that the district judge overlooked a legal 

error in deCastro’s and McKeivier’s advice. He does not 

challenge the district judge’s credibility findings or dispute 

either attorney’s testimony. Rather, Merrill maintains that 

both attorneys were “flatly wrong” when they told him that 

he could be convicted under § 2251(a) based on evidence that 

a minor, at his request, took and sent him sexually explicit 

photographs. According to Merrill, his attorneys failed to tell 

him that the government would also need to show that he 

asked to see the minors’ bodies for the purpose of producing 

images. He implies that, as a result, he pleaded guilty when 

he otherwise would not have. (Although Merrill seems to seek 

withdrawal of his pleas to both production and possession, 

his appellate arguments address only the production count.)

We review the denial of Merrill’s motion to withdraw his 

pleas for abuse of discretion, though factual findings, including whether a plea was entered knowingly and voluntarily, 

are reviewed for clear error. See United States v. Barr, 960 F.3d 

906, 917 (7th Cir. 2020). Under Federal Rule of Criminal Procedure Rule 11(d)(2)(B), once a court accepts a guilty plea, the 

defendant may withdraw it only for a “fair and just reason.” 

Ineffective assistance of counsel that leads to the involuntary 

or unknowing entry of a guilty plea can be such a reason. See

Barr, 960 F.3d at 917–18. In assessing whether a defendant received ineffective assistance, this court applies the familiar 
6 No. 21-1070 

standard of Strickland v. Washington, 466 U.S. 668 (1984), asking whether the attorney’s performance was objectively unreasonable and whether, but for the deficient performance, 

the defendant would not have pleaded guilty. See Barr, 

960 F.3d at 918. 

A. Performance

Merrill fails to demonstrate deficient performance by his 

former attorneys. The record shows that they gave him sound 

advice. Merrill is correct that he may be convicted under 

§ 2251(a) only if he acted for the purpose of producing a visual 

depiction of sexually explicit conduct. United States v. Fifer, 

863 F.3d 759, 768 (7th Cir. 2017). But the fact that Merrill 

demanded Minor A take and send him sexually explicit 

photographs was sufficient to show that his purpose was, at 

least in part, to induce the production of those images. It need 

not have been his only purpose. See id. Merrill has never 

suggested that he had any other purpose, and we recently 

upheld a conviction under § 2251(a) based on similar facts. 

United States v. Fredrickson, 996 F.3d 821, 825 (7th Cir. 2021) 

(“From the moment Fredrickson persuaded [a minor] to 

record and send him sexually explicit videos, he committed a 

federal crime [under § 2251(a)] ... .”). 

Merrill also argues that his former lawyers performed 

deficiently because, no matter whether and how the attorneys 

explained the offense of production, they failed to ensure that 

Merrill understood. He believed—wrongly, he now says—

that he could be convicted if a minor merely sent him an 

explicit photograph at his request, and did not understand 

that the government had to prove that the minor also took the 

photograph at his request.
No. 21-1070 7 

We need not wade into the distinction between asking a 

minor to take and send photographs and asking her to send

already existing photographs. Merrill admitted to asking 

Minor A to take and send photographs. At the change-of-plea 

hearing, he testified that he had read and understood his plea 

agreement, which specified that he knowingly induced Minor 

A to “take,” not just send, an explicit photograph. Merrill later 

swore that, at the time he pleaded guilty, he did not in fact 

understand the elements of the production charge, but he has 

not met the “heavy burden” on defendants who wish to 

contradict their own sworn statements. United States v. Smith, 

989 F.3d 575, 582 (7th Cir. 2021). As we have noted repeatedly,

“a motion that can succeed only if the defendant committed 

perjury at the plea proceedings may be rejected out of hand 

unless the defendant has a compelling explanation for the 

contradiction.” United States v. Peterson, 414 F.3d 825, 827 

(7th Cir. 2005). Judge Lee handled the motion to withdraw 

carefully and thoroughly. He did not abuse his discretion in 

rejecting Merrill’s assertions. 

B. Prejudice

Merrill’s ineffective-assistance arguments also fail because 

he cannot show prejudice. Even if he were correct that his 

lawyers did not adequately explain the production charge, he 

would need to show a “reasonable probability that, but for 

counsel’s errors, he would not have pleaded guilty ... .” Lee v. 

United States, 137 S. Ct. 1958, 1965 (2017), quoting Hill v. 

Lockhart, 474 U.S. 52, 59 (1985). 

Merrill’s argument that no such showing is required is 

without merit; he was not deprived of counsel or otherwise 

subjected to a structural error. See Greer v. United States, 141 S. 

Ct. 2090, 2100 (2021) (omission of element from jury 
8 No. 21-1070 

instructions or plea colloquy is not structural error); Neder v. 

United States, 527 U.S. 1, 8 (1999) (“[W]e have found an error 

to be ‘structural,’ and thus subject to automatic reversal, only 

in a ‘very limited class of cases.’”).

To show prejudice, the best Merrill can do is point to 

statements in his motion to withdraw and at the evidentiary 

hearing swearing that he would not have pleaded guilty if he 

had fully understood the charge. Such “post hoc assertions 

from a defendant about how he would have pleaded but for 

his attorney’s deficiencies” are not, alone, grounds for 

withdrawing his pleas. Lee, 137 S. Ct. at 1967. In addition, as 

explained above, the government’s evidence of production 

was sufficient for a conviction. To the extent Merrill suggests 

that the minors sent him only existing photographs already in 

their possession, this assertion lacks any support in the 

record. One text-message exchange described a real-time 

photo shoot directed by Merrill. On a different occasion, 

Merrill demanded “nude pics” and told Minor A to “go to the 

bathroom and send some,” suggesting she needed privacy to 

take the pictures—at that time. 

Merrill argues that the court erred in accepting his pleas in 

the first place because he said at his change-of-plea hearing 

that he remembered only asking the minors to send photographs. In his view, this testimony demonstrates that he did 

not remember asking anyone to take pictures, and so he must 

have misunderstood the elements of the offense—he would 

not have intentionally pleaded guilty to something that he did 

not remember doing.

The argument mischaracterizes the change-of-plea 

testimony by taking a piece out of context. Merrill actually

testified that he knew the facts set forth in the plea agreement 
No. 21-1070 9 

were accurate even though he lacked an independent 

recollection of some details. After Merrill said, “yes I did do 

that. I just don’t remember it because it was so long ago,” his 

attorney clarified: “I don’t think he is trying to say he doesn’t 

remember the offense in general. I think he is saying, he 

doesn’t remember specific details and takes—accepts as true 

the evidence that’s been presented from his phone, and helps 

him fill in the details in his memory ... .” Merrill did not 

dispute this characterization. The judge, with commendable 

care, questioned Merrill further and confirmed that he indeed 

remembered “engaging in the conduct the government 

describe[d].”

Finally, Merrill appears to argue that his former lawyers 

were obliged to list for him each element of his offense in the 

abstract—that is, without reference to the government’s 

evidence or his own conduct. He criticizes their approach of 

describing the production charge by explaining how the text 

messages could prove each element. This rather fine 

distinction, which would require courts to micromanage 

counsel’s work, has no support in case law. The Sixth 

Amendment right to counsel does not require defense counsel 

to discuss with their clients irrelevant hypothetical or abstract 

questions. Far better to focus on the evidence against the 

particular defendant and the government’s theories and 

defenses available in the particular case.

The judgment of the district court is AFFIRMED.