                                In the

    United States Court of Appeals
                  For the Seventh Circuit
                      ____________________
No. 16-1778
LADMARALD CATES,
                                                 Petitioner-Appellant.
                                  v.

UNITED STATES OF AMERICA,
                                                Respondent-Appellee.
                      ____________________

              Appeal from the United States District Court
                 for the Eastern District of Wisconsin.
              No. 14-CV-1092 — J. P. Stadtmueller, Judge.
                      ____________________

  ARGUED SEPTEMBER 7, 2017 — DECIDED FEBRUARY 20, 2018
                ____________________

   Before WOOD, Chief Judge, and BAUER and SYKES, Circuit
Judges.
    SYKES, Circuit Judge. On a summer day in 2010, Iema
Lemons called 911 to report that her neighbors were vandal-
izing her home on Milwaukee’s north side. Officer
Ladmarald Cates and his partner responded, but the investi-
gation went seriously off track. By an odd series of events,
Cates and Lemons were left alone in her home, and the
officer sexually assaulted her.
2                                                  No. 16-1778

    Cates was charged with two federal crimes: (1) depriving
Lemons of her civil rights under color of law, 18 U.S.C. § 242;
and (2) using or carrying a firearm in relation to that crime,
id. § 924(c)(1)(A). The civil-rights charge was premised on
the sexual assault by a law-enforcement officer, but the
government also alleged that Cates’s conduct amounted to
aggravated sexual abuse, id. § 2241(a), which if proven
would dramatically increase the maximum penalty from one
year to life in prison, § 242. A jury convicted Cates on the
civil-rights count, acquitted him on the firearm count, and
found by special verdict that he committed aggravated
sexual abuse.
    Soon after trial Cates lost confidence in his lawyer, so the
judge allowed her to withdraw and appointed a new attor-
ney. A few days before sentencing, the new lawyer moved to
extend the deadline for postverdict motions, which had
expired several months earlier. The judge denied the motion,
holding that the lawyer waited too long to file it and had not
shown excusable neglect. Cates was sentenced to 24 years in
prison.
   The new lawyer continued to represent Cates on direct
appeal but inexplicably challenged only the denial of his
untimely request for more time to file postverdict motions.
We rejected that doomed argument and expressed concern
that counsel had raised no challenge to Cates’s conviction or
sentence. United States v. Cates, 716 F.3d 445, 450–51 (7th Cir.
2013).
    The case now returns on Cates’s petition for collateral re-
lief under 28 U.S.C. § 2255. He argues, among other things,
that his trial and appellate counsel were constitutionally
ineffective for failing to challenge the jury instruction on
No. 16-1778                                                  3

aggravated sexual abuse. The judge rejected that claim,
finding no error in the instruction.
    We reverse. As relevant here, aggravated sexual abuse is
knowingly causing another person to engage in a sex act by
“using force against that other person.” § 2241(a)(1). At the
government’s request, the judge instructed the jury that
“force” includes not just physical force but also psychologi-
cal coercion and may even be inferred from a disparity in
size between the defendant and victim. That contradicts both
the statutory text and our precedent. “Force” under
§ 2241(a)(1) means physical force, not psychological coercion
or threats. United States v. Boyles, 57 F.3d 535, 544 (7th Cir.
1995). The jury instruction relaxed the government’s burden
and permitted the jurors to find force even if they concluded
that Cates only used psychological coercion or an implied
threat based on his size or status as a police officer. Cates’s
trial and appellate counsel made key legal errors in not
challenging the flawed instruction.
    And the errors were prejudicial. There is a reasonable
probability that a properly instructed jury would find the
evidence insufficient to prove aggravated sexual abuse. That,
in turn, would cap Cates’s maximum penalty at one year.
                       I. Background
   Lemons and Cates have given radically different ac-
counts of the events of July 2010. Neither has been entirely
consistent, and the physical evidence and testimony from
other witnesses likewise conflicts. So the jury had to sort
through many credibility questions. What follows is a brief
summary of the key evidence and procedural history of the
4                                                 No. 16-1778

case. This is not a comprehensive account; it’s just enough
background to understand this appeal.
   At about 1 p.m. on July 16, 2010, Lemons called 911 to
report that a neighborhood dispute had turned violent. She
had an argument with her neighbors earlier in the day, and
the neighbors retaliated by throwing bricks and bottles
through her windows. Officer Cates and his partner, Officer
Alvin Hannah, arrived at her home, a duplex on
Milwaukee’s north side where she lived with her 15-year-old
brother LaQuan Lemons, her boyfriend Jermaine Ford, and
her two children.
   When the officers arrived, they secured the home and
discovered that LaQuan was wanted on an outstanding
juvenile arrest warrant. Lemons, who was her brother’s
guardian, insisted that the warrant was mistaken. She called
LaQuan’s social worker to sort things out, but he didn’t
answer. She left a message asking him to call her back.
   In the meantime the officers took LaQuan into custody
and placed him in the back of their squad. Officer Hannah
stayed there with him while Cates returned to the house.
Lemons sent her children away with Ford’s sister, ostensibly
because of the broken glass in the house. (There’s conflicting
evidence about who suggested this measure.) She then sent
Ford to the store to buy cigarettes. Lemons and Cates were
now alone in the house.
    Lemons testified that Cates demanded oral sex. (Their
stories conflict about whether the sexual encounter began
right away or after Ford returned with the cigarettes and
was sent back to the store to buy bottled water, and also on
the key question whether the encounter was consensual.)
No. 16-1778                                                       5

Lemons testified that she didn’t consent to perform oral sex
but she also didn’t resist because she was afraid. Cates was
bigger and stronger than she, and if she tried to fight him,
she would lose. Cates also had his service firearm and could
kill her if she tried to resist. Finally, she testified that Cates’s
position of authority as a police officer made her feel as
though she had no choice but to comply. She explained:
“You have to listen to what the police say,” and it’s not a
“smart idea” to fight them. She did as he demanded.
   When Ford returned from his errand, Cates gave him $10
and told him to go back to the store to buy water for him and
Officer Hannah. Ford again left the house, and Lemons was
once again alone with Cates. After several more minutes of
oral sex in the bathroom, Cates demanded intercourse.
Lemons was too afraid to resist. She testified that Cates
grabbed her by the neck, pushed her head toward the sink,
and raped her. When he was finished, Lemons vomited on
the floor of the dining room. (According to Ford’s account,
however, Lemons threw up on the dining-room floor before
she made the 911 call.)
    As Cates and Lemons emerged from the house, LaQuan’s
social worker called back. Lemons answered and handed the
phone to Hannah, who was still in the squad with LaQuan.
At some point Officer Hannah released LaQuan from the
squad, and Cates walked down the street to use the bath-
room at a nearby restaurant, behavior that Hannah found to
be odd. Two of Lemons’s friends—Kandice Velez and Kristi
Brooks—were in the neighborhood and approached the
house. The evidence is inconsistent about whether Lemons
told one or both of them that she had been raped, either at
this point or later. The troublesome neighbors then emerged
6                                                No. 16-1778

from across the street, and Lemons began to scream at them.
(She denied this.) To calm things down, Officer Hannah
escorted Lemons and LaQuan back into the house, where
Lemons began yelling at him about why he wasn’t arresting
the neighbors. The situation became increasingly volatile,
and Lemons and LaQuan hurled expletives at the officer. In
the midst of this escalating argument, LaQuan suddenly fled
the house. Hannah gave chase and attempted to rearrest
him. Chaos ensued outside.
    LaQuan resisted arrest, and Officer Hannah struggled to
physically subdue him. The officer’s use of force against her
brother enraged Lemons, and she kicked Hannah twice in
the back. (She denied this too.) Cates then returned to the
scene. LaQuan, still resisting, picked up a brick, which
prompted Hannah to summon backup. A swarm of officers
responded and finally gained control over the situation.
They arrested LaQuan, Lemons, Velez, and Brooks. Lemons
remained agitated, so an officer had to drag her to the paddy
wagon. As she was being taken into custody, she protested in
a loud voice that she had been raped. The officers did not
take her seriously.
   At the police station, Lemons continued to say that she
had been raped and vomited several times. She was trans-
ported to the hospital, where she repeated her rape charge to
a nurse. The nurse examined her and noted that she had
bloodshot eyes, pain and swelling in her neck, and had
vomited, all potential indications of having been choked. But
she had no signs of vaginal trauma or injury.
    The FBI and Milwaukee police opened an investigation
into Lemons’s allegations. Cates initially denied that he had
any sexual contact with her, but his story changed several
No. 16-1778                                                    7

times and he eventually admitted both the oral sex and
intercourse. He maintained that the entire sexual encounter
was consensual. Stains on Cates’s uniform and boxer shorts
were tested and found to contain Lemons’s DNA.
    In September 2011 a grand jury issued an indictment
charging Cates with two federal crimes. Count One alleged
that he deprived Lemons of her civil rights under color of
law in violation of § 242 by sexually assaulting her. Count
Two alleged that he used or carried a firearm in furtherance
of that crime, contrary to § 924(c)(1)(A).
    The civil-rights crime carries a prison term of up to one
year, but the maximum penalty increases to ten years if the
violation results in bodily injury. § 242. If the offense in-
volves aggravated sexual abuse, the maximum penalty is life
in prison. Id. The government alleged both aggravators, and
the prosecutor submitted jury instructions and special-
verdict questions on both bodily injury and aggravated
sexual assault. Without objection from Cates’s attorney, the
judge accepted the government’s proposed instructions and
verdict form.
   The jury returned a split verdict, finding Cates guilty on
the civil-rights count and not guilty on the firearm count.
The jury also found by special verdict that Cates did not
cause bodily injury but did commit aggravated sexual
assault. As we’ve noted, the latter finding raised the maxi-
mum penalty from one year to life in prison.
   When the sentencing date arrived, Cates announced that
he was dissatisfied with his retained counsel. Indeed, two
months earlier we removed the attorney from our bar for
neglecting a client in an unrelated case. See In re Boyle-Saxton,
8                                                   No. 16-1778

668 F.3d 471 (7th Cir. 2012). The Wisconsin Supreme Court
later revoked the attorney’s law license for “widespread”
professional misconduct. Office of Lawyer Regulation v. Boyle,
850 N.W.2d 201, 206 (Wis. 2014). The judge allowed the
attorney to withdraw, adjourned the sentencing hearing, and
ordered new counsel appointed.
    Just days before the rescheduled sentencing hearing,
Cates’s new attorney moved to enlarge the time to file post-
verdict motions under Rules 29 and 33 of the Federal Rules
of Criminal Procedure. The deadline had expired five
months earlier, and new counsel had been on the case for
two months before he asked the judge to reopen the time.
The judge denied the motion, finding that the attorney had
delayed too long and had not shown excusable neglect.
Cates, 716 F.3d at 448–49. When things finally got back on
track, the judge rescheduled the sentencing hearing and
imposed a sentence of 24 years in prison.
   Cates’s new counsel stayed with the case through direct
appeal but challenged only the judge’s denial of his untimely
request for more time to file posttrial motions. That argu-
ment was clearly a loser; we affirmed, finding no abuse of
discretion. Id. at 449–50. We also expressed our concern that
Cates’s attorney had not challenged “any aspect of [the]
conviction or sentence on appeal.” Id. at 450.
    After his ill-fated direct appeal, Cates filed a pro se peti-
tion to vacate his conviction and sentence under § 2255. He
raised 19 claims, including several based on ineffective
assistance of counsel. One such claim was premised on his
trial attorney’s failure to challenge the jury instruction
defining aggravated sexual abuse (and by extension, his
appellate attorney’s failure to raise the instructional error on
No. 16-1778                                                                9

appeal). The judge denied relief across the board. As rele-
vant here, he concluded that the challenged jury instruction
was correct. The judge then certified the jury-instruction
claim for appeal. 1
                             II. Discussion
    Cates asks us to vacate his conviction and sentence based
on a violation of his Sixth Amendment right to the effective
assistance of counsel for his defense. U.S. CONST. amend. VI;
Strickland v. Washington, 466 U.S. 668 (1984). To prevail,
Cates must show that his lawyer’s performance was defi-
cient and that he suffered prejudice as a result. Strickland,
466 U.S. at 687; Faucett v. United States, 872 F.3d 506, 509 (7th
Cir. 2017). Judicial review of counsel’s performance is defer-
ential. Because “[t]here are countless ways to provide effec-
tive assistance in any given case,” we “indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Strickland,
466 U.S. at 689. Cates has the burden to show that his law-
yer’s performance fell below an objective standard of rea-
sonableness. 2 Id. at 688; Faucett, 872 F.3d at 509.



1 The judge actually certified eight claims for appeal. We appointed the
Federal Defender’s Office and eventually narrowed the scope of the
appeal to the jury-instruction claim and two others. Because we’re
granting relief on the jury-instruction claim, we have no need to elabo-
rate on the others.
2 The government argues in passing that Cates waived this claim by not
clearly alleging ineffective assistance of trial and appellate counsel in the
section of his pro se § 2255 petition pertaining to the mishandling of the
jury instruction. The district judge understood Cates to be making an
ineffective-assistance claim relating to the jury instruction, denied it, and
10                                                      No. 16-1778

    Cates’s Strickland claim rests on an alleged instructional
error. If the jury instruction on aggravated sexual assault
misstated the law and the error was not harmless, then the
first part of the Strickland standard has been met. There is no
conceivable strategic reason for a defense lawyer to forgo a
challenge to a prejudicial jury instruction; a mistake of law is
deficient performance. See Vinyard v. United States, 804 F.3d
1218, 1225 (7th Cir. 2015) (citing Hinton v. Alabama, 134 S. Ct.
1081, 1089 (2014)). And because the instruction at issue here
concerned a key sentencing factor that would significantly
elevate the maximum prison term, Strickland prejudice is
established if there is a reasonable probability that a proper-
ly instructed jury would have reached a different result.
These are pure questions of law, so our review is de novo.
See United States v. Bloom, 846 F.3d 243, 255 (7th Cir. 2017).
    We begin with the statutory definition of aggravated sex-
ual abuse. A person commits the crime of aggravated sexual
abuse if he “knowingly causes another person to engage in a
sexual act—(1) by using force against that other person; or
(2) by threatening or placing that other person in fear that
any person will be subjected to death, serious bodily injury,
or kidnapping.” § 2241(a). This text notably contrasts with
the statute defining the crime of sexual abuse in its
nonaggravated form: A person commits sexual abuse if he
“knowingly causes another person to engage in a sexual act
by threatening or placing that other person in fear (other
than by threatening or placing that other person in fear that
any person will be subjected to death, serious bodily injury,
or kidnapping).” 18 U.S.C. § 2242(1).

issued a certificate of appealability. We modified the certificate but
continued to authorize an appeal of this claim. There was no waiver.
No. 16-1778                                                11

    Note the carve-out language in the latter statute, which
reinforces the difference between the basic sexual-abuse
crime and the aggravated form. The crime of sexual abuse
under § 2242(1) encompasses the use of any kind of threat or
other fear-inducing coercion to overcome the victim’s will.
But for aggravated sexual abuse under § 2241(a), the jury
must find that the defendant (1) actually used force against
the victim or (2) that he made a specific kind of threat—i.e.,
that he threatened or placed the victim in fear of death,
serious bodily injury, or kidnapping.
    We long ago held that the term “force” in § 2241(a)(1)
means physical force. Boyles, 57 F.3d at 544. Boyles describes
“force” as “the exertion of physical power upon another to
overcome that individual’s will to resist.” Id. (emphasis
added). Threats and fear, on the other hand, “are not classi-
fied as physical power, but rather overcoming one’s will to
resist through mental and emotional power.” Id. In other
words, psychological coercion is not enough for a finding of
“force” under § 2241(a). Rather, the jury must find that the
defendant used actual physical force.
    Alternatively, a jury may find a defendant guilty of ag-
gravated sexual abuse based on proof of a particularly
grievous kind of threat or fear—a threat or fear of death,
serious bodily injury, or kidnapping. § 2241(a)(2); see also
United States v. Henzel, 668 F.3d 972, 977 (7th Cir. 2012)
(explaining the distinction between “force” and “fear” in this
context). Threats or fear-inducing coercion of a lesser nature
can support a conviction for the crime of sexual abuse under
§ 2242(1) but not aggravated sexual abuse under § 2241(a)(2).
   Here the jury instruction on aggravated sexual abuse told
the jurors that “[t]o establish force, the government need not
12                                                  No. 16-1778

demonstrate that the defendant used actual violence.” The
instruction continued: “The requirement of force may be
satisfied by a showing of … the use of threat of harm suffi-
cient to coerce or compel submission by the victim.” Finally,
the instruction stated that “[f]orce may also be implied from
a disparity in coercive power or in size between the defend-
ant and [Lemons].”
    By defining “force” in this expansive way, the jury in-
struction flatly contradicted the text of § 2241(a)(1) and our
decision in Boyles. The instruction plainly misstated the law
by wrongly suggesting that force does not mean physical
force. The jury was told that threats and other nonphysical
forms of coercion—including a mere disparity in coercive
power or size—could suffice to establish force. That errone-
ously conflated the distinction between “force” and “fear,”
relaxing the government’s burden. The instruction permitted
the jurors to find that Cates committed aggravated sexual
abuse based on proof of something less than either physical
force or a threat or fear of death or serious bodily injury.
    It was a serious mistake for trial counsel not to object to
this badly flawed jury instruction. Appellate counsel, more-
over, should have raised the instructional error on appeal.
The argument he did raise was certain to fail. And although
trial counsel had forfeited the error and thus review would
have been limited to plain error, the flaw in the instruction
was both obvious and clear under current law. See United
States v. Natale, 719 F.3d 719, 731 (7th Cir. 2013) (“Plain error
requires obvious error that is clear under current law.”)
(internal quotation marks omitted). Finally, the last step in
plain-error analysis is satisfied here. The instructional error
affected Cates’s substantial rights, see id., for the same rea-
No. 16-1778                                                  13

sons that the error was prejudicial under the Strickland
standard. We turn to that inquiry now.
    Strickland prejudice is established if there is a reasonable
probability that a properly instructed jury would have found
the evidence insufficient to prove that Cates committed
aggravated sexual abuse. That standard is met here. True,
Lemons testified that Cates squeezed her neck and pushed
her head toward a sink; that testimony, if credited by a
properly instructed jury, could support a finding of physical
force within the meaning of § 2241(a)(1). Lemons also testi-
fied that Cates carried his service firearm and she was afraid
that he would use it against her if she resisted. That testimo-
ny could support a finding of fear of death or serious bodily
injury under § 2241(a)(2), which is an alternative basis for a
finding of aggravated sexual abuse.
    Two circumstances give us substantial reason to doubt
that the special verdict rested on either of these findings.
First, the jury specifically found that Cates did not cause
bodily injury, which makes it unlikely that the jurors be-
lieved that he used physical force against Lemons. Second,
the jury acquitted Cates on the firearm charge, which makes
it unlikely that the jurors believed that he placed Lemons in
fear of being shot.
    Lemons also testified that she did not resist Cates’s de-
mands because he was bigger and stronger and was a police
officer. That’s clearly insufficient to support a finding of
force under § 2241(a)(1). It’s possible that a properly in-
structed jury could find this testimony sufficient to support a
“threat” or “fear” theory of the crime (though we are skepti-
cal that there would be many cases in which a mere dispari-
ty in size sufficed to support a conviction). But the
14                                                    No. 16-1778

alternative statutory basis for aggravated sexual abuse re-
quires proof of a threat or fear of death or serious bodily injury.
There’s a reasonable probability that a properly instructed
jury would find the evidence insufficient on this point.
    In closing, it’s worth repeating that the errors by trial and
appellate counsel meant the difference between a sentence
capped at one year and a maximum penalty of life in prison.
We have little difficulty concluding that the errors by Cates’s
counsel prejudiced his case. Relief under § 2255 is warrant-
ed. We reverse and remand for further proceedings con-
sistent with this opinion.
                                      REVERSED and REMANDED.
