United States v. Oluwaseun Sanya , 774 F.3d 812 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4937
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OLUWASEUN SANYA,
Defendant - Appellant.
No. 13-4938
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OLUWASEUN SANYA,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:13-cr-00121-PJM-1; 8:12-cr-00379-PJM-1)
Argued: October 30, 2014 Decided: December 17, 2014
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz wrote the
majority opinion, in which Judge Floyd joined. Judge Wilkinson
wrote a separate concurring opinion.
ARGUED: Byron Brandon Warnken, Jr., WARNKEN, LLC, Pikesville,
Maryland, for Appellant. Sujit Raman, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF:
Byron L. Warnken, WARNKEN, LLC, Pikesville, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
2
DIANA GRIBBON MOTZ, Circuit Judge:
Oluwaseun Sanya contends that his guilty plea to access-
device fraud and aggravated identity theft was involuntary
because the district court impermissibly participated in plea
negotiations. We agree that the district court committed
reversible error and so vacate and remand for further
proceedings.
I.
In July 2012, Sanya pleaded guilty to one count of
conspiracy to commit access-device fraud in violation of 18
U.S.C. § 1029(b)(2). As early as 2010, Sanya had begun
operation of a large-scale credit card fraud scheme. He
recruited employees of various restaurants and other businesses
to steal customers’ credit card information by using an
electronic device that he provided. With this stolen credit
card information, Sanya made counterfeit credit cards, which co-
conspirators then used to purchase gift cards. The fraudulently
purchased, but otherwise legitimate, gift cards were then used
to buy consumer goods that the co-conspirators later returned
for cash. In this way, Sanya used the stolen credit cards to
amass substantial amounts of money.
After his July 2012 plea, Sanya was released pending
sentencing under several conditions, including that he commit no
3
further crimes. Unfortunately, upon his release, Sanya promptly
resumed operation of his credit card fraud scheme. Indeed, in
September 2012 -- a mere six weeks after his release -- security
officials at a store in Abingdon, Maryland, noticed the
suspicious behavior of Sanya’s co-conspirators and called the
local police. Officers responded to the scene, arrested Sanya,
and after an investigation, charged him with numerous state
crimes and retained him in state custody. When federal
officials learned of Sanya’s arrest, he was transferred to
federal custody, and the state charges were dismissed. On March
13, 2013, a federal grand jury indicted Sanya of access-device
fraud and other charges, including aggravated identity theft.
Sanya’s sentencing for the initial access-device fraud
offense -- to which he had pleaded guilty in July -- was
postponed while the Government and Sanya’s counsel attempted to
negotiate a plea that would resolve the second offenses and
consolidate all of Sanya’s offenses for sentencing. Sanya,
however, rejected the Government’s offer, and at the time of his
May 2013 detention hearing on the second offenses, the parties
had failed to reach any plea agreement.
Learning of Sanya’s intransigence at that detention
hearing, the district judge expressed his strong preference that
Sanya enter a plea to the second set of charges and agree to
have those charges and the initial access-device fraud charge
4
consolidated for sentencing. In so doing, the court repeatedly
opined that such a plea would be beneficial to Sanya’s
interests. After hearing the judge’s exhortations, Sanya
changed course and expressed a willingness to work toward such a
result.
Five days later, Sanya executed a plea agreement covering
the second set of charges. The plea was entered the next month,
before the same district judge, with Sanya pleading guilty to
one count of access-device fraud in violation of 18 U.S.C.
§ 1029(a)(2), as well as one count of aggravated identity theft
in violation of 18 U.S.C. § 1028A. These charges were then
consolidated with the initial access-device charge for
sentencing. At the consolidated sentencing hearing, before the
same district judge, the court sentenced Sanya to 90 months’
imprisonment for the single initial count of conspiracy to
commit device fraud; 188 months for the September count of
device fraud, to be served concurrently with the 90-month
sentence; and 24 months for the September count of aggravated
identity theft, to be served consecutively, for a total of 212
months’ imprisonment. Sanya timely noted this appeal.
II.
Sanya contends that, in violation of Federal Rule of
Criminal Procedure 11(c)(1), the district court improperly
5
participated in plea discussions, rendering his plea to the
September crimes invalid.
Rule 11(c) provides that “[a]n attorney for the government
and the defendant’s attorney . . . may discuss and reach a plea
agreement,” but “[t]he court must not participate in these
discussions.” Fed. R. Crim. P. 11(c)(1). This prohibition on
judicial involvement serves “three principal interests: it
diminishes the possibility of judicial coercion of a guilty
plea; it protects against unfairness and partiality in the
judicial process; and it eliminates the misleading impression
that the judge is an advocate for the agreement rather than a
neutral arbiter.” United States v. Bradley, 455 F.3d 453, 460
(2006) (quoting United States v. Cannady, 283 F.3d 641, 644-45
(4th Cir. 2002)) (internal quotation marks omitted).
Because Sanya neither objected to the judge’s involvement
in plea discussions, nor made an attempt to withdraw his guilty
plea, we consider his appellate argument under the rigorous
plain error standard. See United States v. Davila (Davila I),
133 S.Ct. 2139, 2147 (2013); Bradley, 455 F.3d at 462. To
prevail on a claim of plain error, Sanya must demonstrate not
only that the district court plainly erred, but also that this
error affected his substantial rights. United States v. Olano,
507 U.S. 725, 731-32 (1993). In the Rule 11 context, this
inquiry means that Sanya must demonstrate a “reasonable
6
probability that, but for the error,” he would not have pleaded
guilty. Bradley, 455 F.3d at 463 (internal citation omitted).
Further, we will not correct any error unless we are convinced
that a refusal to do so would “seriously affect the fairness,
integrity or public reputation of judicial proceedings.” Id.In determining whether these requirements have been met, we
consider the “full record.” Davila I, 133 S.Ct. at 2150; see
also Bradley, 455 F.3d at 462 (“[w]e consider the entire
record”).
With these principles in mind, we turn to their application
in this case.
III.
A.
We first determine whether the district court plainly
erred. Olano, 507 U.S. at 731-32. The Government properly
concedes that the district court “likely erred by involving
itself in plea negotiations,” but briefly contends that the
error was not plain. Appellee’s Br. at 30, 37 n.13. The
initial concession is well taken; the latter contention is not.
Of course, a district court does not run afoul of Rule 11
simply by mentioning the possibility of a plea. Indeed, in
Bradley, we distinguished a case requiring reversal because of
judicial interference from those in which “a single brief remark
7
during negotiations” or “judicial comments after completion of
the plea agreement” have been held not to constitute
impermissible judicial involvement in plea discussions. 455
F.3d at 462 (citing cases). The district court’s comments here,
however, were neither brief nor made after a plea deal had been
struck.
Rather, the court repeatedly intimated that a plea to the
September charges was in Sanya’s best interests. See J.A. 167
(“It seems to me [a plea] may stand your client a lot better.”);
J.A. 168 (“So that’s why I think a global resolution of this
makes an awful lot of sense.”); J.A. 169 (“So, again, it’s just
one of those cases where it feels like a global settlement makes
sense.”). 1 Moreover, the court strongly suggested that Sanya
would receive a more favorable sentence if he agreed to plead
guilty to the September charges and to consolidate all charges
for sentencing. See J.A. 167-68 (“[I]f you do one [case at a
time] and I sentence and I come back and I have a trial or
whatever and he gets convicted, he stands to face another new
package; whereas . . . I can’t move it down from what it is.”);
J.A. 169 (“And then you have got a trial where he is going to
face another package and who knows where the numbers go at that
point.”); J.A. 172 (“But sometimes it’s possible, and I can’t
1
All citations to the J.A. refer to the joint appendix
filed by the parties in this appeal.
8
say this with certainty, that he ends up with a less -- less
pleasant sentence if we take this in two pieces . . . than if we
take it in one.”); J.A. 171 (“Better to get all this wrapped in
one.”). Finally, the court also commented on the strength of
the Government’s case. See J.A. 167 (“Magistrate Judge Day said
. . . in his detention order, [t]he government’s case looks
pretty strong in this second case.”). These repeated remarks
clearly constitute judicial participation in plea discussions,
and the district court erred in engaging in them.
Just as clearly, this error was plain. Rule 11(c) is not
new, and the doctrine surrounding its interpretation is well-
settled. The Rules Committee adopted -- and the Supreme Court
approved -- what is now Rule 11(c) in substantially its present
form many years prior to the hearing at issue in this case. See
Davila I, 133 S.Ct. at 2146; Fed. R. Crim. P. 11 advisory
committee’s note on 1974 amendment. Furthermore, like our
sister circuits, we have consistently warned that a district
court errs in urging defendants to accept offers to plead. See,
e.g., Bradley, 455 F.3d at 462; United States v. Baker, 489 F.3d
366, 373 (D.C. Cir. 2007); United States v. Rodriguez, 197 F.3d
156, 158-59 (5th Cir. 1999); United States v. Kraus, 137 F.3d
447, 452 (7th Cir. 1998). Thus, we can only conclude that the
9
court’s discussion of and advocacy for a plea and “global
resolution” constituted plain error. 2
B.
We must next determine whether the error affected Sanya’s
“substantial rights.” Olano, 507 U.S. at 731-32. In doing so,
we simply ask whether there is “a reasonable probability that,
but for the error, he would not have entered the plea.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Our close
examination of the full record leads us to conclude that Sanya
has demonstrated such a “reasonable probability.”
i.
At the beginning of the hearing, defense counsel made clear
that, despite his recommendation that Sanya plead and agree to a
global resolution, Sanya had “declined the [Government’s plea]
2
The Government misses the mark in suggesting that Sanya
invited this error. “The invited error doctrine recognizes that
a court cannot be asked by counsel to take a step in a case and
later be convicted of error, because it has complied with such
request.” United States v. Jackson, 124 F.3d 607, 617 (4th Cir.
1997) (internal citation and quotation marks omitted). The
Government argues that Sanya’s counsel “consciously turn[ed] the
subject of the hearing” toward the potential plea in hopes that
the court could convince Sanya to take the Government’s offer.
Appellant’s Br. 35-37. Although Sanya’s counsel alluded to the
prospect of a “global resolution,” and may well have appreciated
the district court’s enthusiasm for a plea and “global
settlement,” the record does not offer any support for the view
that defense counsel asked or suggested that the court
participate in plea negotiations. Thus, the court’s error in
doing so was not invited.
10
offer.” J.A. 167. 3 The district court then responded with a
series of exhortations as to why it would be advantageous for
Sanya to plead. After commenting that although “I obviously
can’t make you do this” -- i.e., plead guilty in the second case
-- the court opined that it might “stand [Sanya] a lot better”
to do so. J.A. 167.
Over the course of this hearing, after commenting on the
strength of the Government’s case against Sanya, the court
repeatedly expressed its view that a plea to the second set of
charges and a “global resolution” would be to Sanya’s advantage,
intimating that he would receive a more lenient sentence if he
did so. See J.A. 167, 168, 169. 4 And the court clearly
3
From the outset, Sanya had demonstrated a desire to go to
trial on the second set of charges. Thus, within weeks of his
indictment on those charges, he had filed several pretrial
motions, including a motion in limine. J.A. 11 ¶ 5, 7. The
docket does indicate that ten days after Sanya filed this
motion, a “guilty plea/rearraignment” was scheduled. The
Government, without citation to anything other than this docket
entry, asserts that Sanya “accepted a plea offer.” Appellee’s
Br. 10. But this early plea hearing apparently never took place
and the record contains no early plea. Sanya contends that he
had “considered taking a plea” but “up until the time of the
judicial interjection, [he] had affirmatively decided not to
accept the plea bargain.” Reply Br. 1-2. Even this
consideration seems brief, for less than a week after the
scheduled “guilty/plea rearraignment” hearing, the parties were
again preparing for trial, as evidenced by the filing of
numerous additional pretrial motions. See J.A. 11-12 ¶¶ 9-15.
4
Shortly after one such suggestion, the district court
noted “I can’t get involved in your negotiations.” J.A. 168.
The Government regards this disclaimer as significant. But
(Continued)
11
highlighted the downside of not entering a plea, warning Sanya
“who knows where the numbers will go” if he insisted on a trial.
J.A. 169.
The district court’s repeated comments about the
advisability of a global plea agreement appear to have had an
almost immediate effect on Sanya. Near the end of the hearing,
Sanya conferred with his lawyer and conveyed an interest “in a
global resolution.” J.A. 171. This sudden and significant
shift in attitude from the beginning of the hearing, when
Sanya’s lawyer indicated that Sanya “had declined [an] offer,”
J.A. 167, strongly suggests that his mid-hearing change of heart
was the product of the district court’s urging.
Even after Sanya expressed a tentative interest in
negotiating a plea, the district court continued to send signals
that Sanya would be well-served by reaching an agreement with
the Government. Indeed, the court again suggested that Sanya
would receive a more favorable sentence by pleading guilty and
receiving a consolidated sentence, explaining “sometimes it’s
possible, and I can’t say with certainty, that he ends up with a
less -- less pleasant sentence if we take this in two pieces”
given that the court had already become involved in the
negotiations, and, just moments after this disclaimer, once
again extolled the merits of a “global” resolution, we cannot
agree.
12
rather “than if we take it in one.” J.A. 172. Further
emphasizing the point, the court cautioned that “I think you
need to understand that, Mr. Sanya. That’s the reality of the
way the system works.” J.A. 172.
Sanya listened. Within just five days of this hearing,
Sanya had executed a plea agreement. See J.A. 178-79. And
within a month, the plea was entered and the two cases were set
for a consolidated sentencing. Such close temporal proximity
weighs heavily in favor of finding that Sanya’s decision to
plead guilty was the result of the district court’s involvement
in the plea negotiations. While other factors could have
intervened during that short period and led Sanya to plead
guilty, it is, at the very least, “reasonably probable” that the
district court’s comments during the May 10 hearing were the
tipping point.
ii.
In arguing to the contrary in its appellate brief, the
Government simply ignores the facts set forth above. See
Appellant’s Br. 37-38. Instead, the Government contends that
Sanya has failed to demonstrate the court’s exhortations had any
effect on his substantial rights because he did not object to
the court’s involvement either at the proper Rule 11 colloquy,
or at sentencing, or by otherwise moving to withdraw his plea
before this appeal. Id. at 38. Sanya’s failure to object to
13
the error on any of these occasions of course provides the
reason why he must meet the rigorous plain error standard. But
this failure, in and of itself, does not provide a basis for
concluding that Sanya failed to demonstrate a “reasonable
probability” that his substantial rights were affected.
In a series of Rule 28(j) letters, 5 the Government switches
gears and argues that cases from other circuits, reviewing
entirely different records, “require the result” it seeks here.
See United States v. Thompson, --- F.3d ---, 2014 WL 5334447(8th Cir. Oct. 21, 2014); United States v. Davila (Davila II),
749 F.3d 982 (11th Cir. 2014); United States v. Castro, 736 F.3d
1308 (11th Cir. 2013). The Government’s heavy reliance on cases
from other courts, assessing other records, stands in
considerable tension with the Supreme Court’s recent and
explicit teaching in Davila I as to the proper appellate review
of a district court’s participation in a guilty plea. The
Davila I Court made crystal clear its “essential point . . .
that particular facts and circumstances matter.” 133 S.Ct. at
2149. Thus, in considering a district court’s participation in
5
In a three-week period, the Government filed five Rule
28(j) letters in this case -- perhaps a record. The Rule
requires that the body of any Rule 28(j) letter “not exceed 350
words.” Fed. R. App. P. 28(j). Four of the Government’s five
letters exceeded this word limit; one exceeded a thousand words.
We trust that in the future the Government will comply with the
letter and spirit of Rule 28(j).
14
a plea negotiation, an appellate court must assess the “facts
and circumstances” in the case before it.
It is the particular facts and circumstances in this case
that lead us to conclude that Sanya has established a
“reasonable probability” that, absent the error, he would not
have entered the plea. These facts and circumstances differ in
important respects from those in the cases on which the
Government so heavily relies. First, in two of the Government’s
cases, the appellate courts appear to have applied an incorrect
legal standard in assessing whether the defendant’s substantial
rights had been violated. To be sure, in both, the courts
acknowledged the correct “reasonable probability” standard.
Castro, 736 F.3d at 1313; Davila II, 749 F.3d at 993. But in
both cases, the courts went on to explain that a defendant must
do more than demonstrate a “reasonable probability” that, absent
the error, he would not have pleaded guilty. Thus, in Castro,
the court opined at some length that a defendant “must prove
that but for the [district court’s] error, he would not have
entered the plea.” Castro, 736 F.3d at 1314 (emphasis added).
The court found Castro had not established a violation of his
substantial rights because it was “not convinced that [he] would
have rejected the plea agreement had the district court not
advised him of the consequences of reneging on his plea
agreement.” Id. (emphasis added); see also id. at 1309, 1315.
15
In Davila II, the court again followed this flawed approach.
See Davila II, 749 F.3d at 997 (noting that the defendant “must
prove that the error made a difference in his decision,” and
“must prove more than that the record is consistent with his
argument; he must show that the error actually did make a
difference.” (emphasis added) (internal quotation omitted)).
The Government repeats this incorrect standard in one of
its Rule 28(j) letters, arguing that “Sanya, on plain error
review, cannot surmount the ‘daunting obstacle’ of proving that,
but for the Rule 11(c)(1) error, he would have gone to trial.”
Letter of October 30, 2014 (emphasis added) (quoting Castro, 736
F.3d at 1314); see also id. (reasoning that “if the effect of
the error on the result in the district court is uncertain or
indeterminate,” the defendant “has failed to prove that the
result would have been different . . . or his substantial rights
have been affected” (emphasis added)).
The Government (and Castro and Davila II) are simply wrong
in requiring a defendant to prove that “but for the Rule
11(c)(1) error, he would have gone to trial.” Id. (emphasis
added). The Supreme Court has clearly instructed that to
establish a violation of substantial rights, a defendant need
only demonstrate a “reasonable probability” that the error led
him to enter the plea. Dominguez, 542 U.S. at 83. And the
Court has painstakingly explained what it means by “reasonable
16
probability” -- a “defendant must thus satisfy the judgment of
the reviewing court, informed by the entire record, that the
probability of a different result is ‘sufficient to undermine
confidence in the outcome’ of the proceeding.” Id. (citations
omitted). Hence, contrary to the Government’s contention (and
the apparent practice in the two cases on which it most heavily
relies), Sanya need not show that, “but for” the court’s error,
he would have gone to trial, or that this result was “certain.”
He need only demonstrate a “reasonable probability” that he
would not have pleaded guilty absent the court’s comments.
Moreover, all three of the cases on which the Government
relies involve very different facts from those in the case at
hand. Perhaps most importantly, the defendants in all of the
Government’s cases had agreed to terms in one or more plea
agreements prior to the challenged comments by the district
court. In Thompson, “[t]he day before the trial was to begin,”
the defendant “notified the district court he would plead
guilty” and the “proposed plea agreement was provided to the
district court for review.” 2014 WL 5334447 at *1. Similarly,
the defendants in Davila II and Castro both signed written plea
agreements before later reneging and expressing a desire not to
plead. Davila II, 749 F.3d at 995; Castro, 736 F.3d at 1310.
Thus, when the defendants in those three cases appeared before
17
the district court, the court knew of and reacted to their
stated earlier intent to plead guilty.
In stark contrast, the record in this case indisputably
bears out Sanya’s contention that when he appeared before the
district court, the court had no reason to believe he intended
to plead guilty. Indeed, Sanya’s counsel explained at the
outset of the hearing that although he had advised Sanya to
agree to a plea and global resolution, Sanya had “declined the
offer.” J.A. 166-67. Notwithstanding its suggestion of an
early aborted plea, see supra n.3, the Government does not
contend to the contrary. This critical fact tellingly
distinguishes Sanya’s case from those on which the Government
relies, and significantly undercuts the Government’s contention
that Sanya would have pleaded guilty even without the district
court’s urging.
Furthermore, the plea agreement Sanya ultimately did sign
afforded him little in the way of benefits or concessions from
the Government. Compare Castro, 736 F.3d at 1314 (plea
permitted defendant to avoid “prosecution and punishment for
seven offenses,” including one “for which he faced mandatory
sentence of 25 years . . . that had to run consecutively”).
This fact further suggests that it was the district court’s pre-
plea intimation of a “less pleasant sentence if we take this in
18
two pieces,” J.A. 172, rather than the plea deal itself, that
changed Sanya’s mind and led him to plead guilty. 6
Additionally, unlike the defendant in Davila II, Sanya was
urged to accept a plea by the same judge who sentenced him.
And, in contrast to Castro, that judge repeatedly emphasized
that he would be sentencing Sanya when urging him to plead,
increasing the risk that Sanya felt coerced to do as the judge
advised. Further, unlike either Thompson or Davila II, here the
district court did indicate that pleading guilty would be in the
defendant’s best interests, even suggesting that the strength of
the Government’s case counseled in favor of striking a deal.
See J.A. 167-68.
For all of these reasons, after close examination of the
full record in this case, we can only conclude that Sanya has
6
The Government points to Sanya’s undocumented, apparently
aborted, early agreement to plea, his assertion of diminished
capacity to delay trial, and his procurement of new counsel for
sentencing as “gamesmanship,” relied on by the Castro court as
proof that Rule 11 error did not affect substantial rights. See
Castro, 736 F.3d at 1314-15. We find the argument unpersuasive
for two reasons. First, the Castro court relied on
“gamesmanship” to buttress an incorrect legal standard for
asserting an effect on substantial rights, i.e., requiring
Castro to prove that “but for” the judicial comments he would
not have entered a plea. Second, the Castro court reasoned that
“gamesmanship . . . suggest[ed] that [the defendant] decided to
plead guilty because he did not want to forego a favorable
agreement.” Id. at 1314. In the case at hand, Sanya’s conduct
does not suggest he pleaded guilty to avoid “forego[ing] a
favorable [plea] agreement” since Sanya did not avoid foregoing
a favorable plea agreement.
19
established a reasonable probability that, absent the district
judge’s involvement, he would not have pleaded guilty to the
second set of charges.
C.
We thus turn to the final inquiry -- whether refusing to
notice this plain error, which Sanya has shown to have had a
reasonable probability of affecting his substantial rights,
would “seriously affect the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 736(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936))
(quotation marks omitted). We believe it would.
Although the district court’s comments about the advantages
of a plea to the second set of charges and consolidation of the
two cases occurred in a single, short hearing, those comments
were repeated and direct. Indeed, the court’s exhortations
saturated the hearing. Immediately upon receipt of those
exhortations, Sanya withdrew his insistence on going to trial
and agreed to consider both a plea to the second charges and the
“global resolution” that the judge advised; five days later he
signed a plea agreement that achieved that precise result.
We have consistently concluded:
[G]iven the critical interests served by the
prohibition [on judicial involvement in plea
negotiations] -- preserving “the judge’s impartiality
throughout the proceedings and preventing the public
from gaining the “misleading impression” that a judge
20
is anything less than a “neutral arbiter” . . . --
failure to notice this sort of clear Rule 11 error
would almost inevitably seriously affect the fairness
and integrity of judicial proceedings.
Bradley, 455 F.3d at 463 (quoting Cannady, 283 F.3d at 644-45).
The district court put Sanya “in a position that would be
reasonably perceived by a defendant as inconsistent with the
court’s role as a neutral arbiter of justice.” Baker, 489 F.3d
at 375.
As our colleagues on the D.C. Circuit recently explained,
“[w]hen a court appears to make a tacit offer of leniency in
exchange for a guilty plea, even if that offer is accompanied by
caveats, confidence in the court is undermined.” Id. We
therefore conclude, after close review of the entire record,
that refusal to notice the plain error in this case would
“seriously affect the fairness, integrity or public reputation
of judicial proceedings.” Olano, 507 U.S. at 736.
IV.
We note that our review of the full record also leads us to
conclude that the experienced district judge acted only with the
best of intentions. The judge attempted to resolve Sanya’s case
not just expeditiously, but also fairly. We perceive no desire
to coerce an involuntary plea.
21
Because, notwithstanding the district court’s good
intentions, our full record review reveals a reasonable
probability that the court’s plain error affected Sanya’s
substantial rights, and that failure to recognize this error
would seriously undermine confidence in the fairness of judicial
proceedings, we vacate the sentence imposed on Sanya and remand
for further proceedings. On remand, Sanya can withdraw his
guilty plea to the September 2012 charges (the subject of PJM
13-0121). 7 Of course, Sanya’s agreement of July 2012, to plead
guilty to the first charge (PJM 12-0379) still stands, because
it was not affected by anything said at the May 2013 hearing.
As is usual, we also remand the case for assignment to a
different district judge. See Baker, 489 F.3d at 376; Bradley,
455 F.3d at 465. We have absolutely no doubt that the original
district judge could continue to preside fairly over this case.
But “[r]egardless of the judge’s objectivity, it is the
defendant’s perception of the judge that will determine whether
7
Given our resolution of this issue, we need not reach
Sanya’s other appellate contentions; all are now moot. We do
appreciate the Government’s statement at oral argument that it
will undertake to examine its standard plea agreement (which was
used in this case) in order to eliminate possible ambiguous or
contradictory provisions.
22
the defendant will feel coerced to enter a plea.” Bradley, 455
F.3d at 465 (internal quotation marks and citations omitted).
VACATED AND REMANDED
23
WILKINSON, Circuit Judge, concurring:
I am pleased to concur in Judge Motz’s fine opinion in this
case. It underscores the wisdom of Rule 11’s injunction to
district courts to “not participate in [plea] discussions.” Fed.
R. Crim. P. 11(c)(1). Like my colleagues, I find it difficult to
criticize the district court. See Maj. Op. Sect. IV. That court
rightly recognized that defendants often benefit substantially
from taking a plea. However, it failed to appreciate
sufficiently that where, out of a belief in one’s innocence, a
desire to put the state to its proof, or a desire simply to roll
the dice, defendants may, if they wish, risk deeply unfavorable
outcomes by exercising a judicially unimpeded right to proceed
to trial.
I.
I would emphasize, however, the Supreme Court’s emphatic
holding that Rule 11(c) violations are not structural errors,
but are subject to harmless and plain error review. See Fed. R.
Crim. P. 11(h), 52(a)-(b). In United States v. Davila, 133 S.
Ct. 2139 (2013), the defendant contended that courts should
automatically vacate convictions arising from plea agreements
where the court engaged in “conduct banned by Rule 11(c)(1)”
because “[w]hen a judge conveys his belief that pleading guilty
would be to a defendant’s advantage . . . [he] becomes, in
effect, a second prosecutor, depriving the defendant of the
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impartial arbiter to which he is entitled.” Id. at 2148. Rule
11(c) violations, Davila argued, should be “no mere procedural
technicality.” Id.Yet a holding of structural error would have vitiated the
Supreme Court’s long support for “the finality of guilty pleas.”
See id. at 2147 (quoting United States v. Vonn, 542 U.S. 55, 79
(2002)) (internal quotation marks omitted). The Court thus
firmly rejected the contention that Rule 11 violations should be
considered structural error, asserting that Rule 11 does not
“demand[] automatic vacatur of the plea without regard to case-
specific circumstances.” Id. at 2148. Only “a very limited class
of errors” should be considered structural errors such that they
“trigger automatic reversal.” Id. at 2149 (quoting United States
v. Marcus, 560 U.S. 258, 263 (2010)) (internal quotations
omitted). Rule 11, the Supreme Court stressed, “does not belong
in that highly exceptional category.” Id.The majority notes that the Supreme Court did not adopt a
difficult “but for” standard for determining whether the Rule
11(c) violation affected a defendant’s rights, in this case the
desire to proceed to trial. Maj. Op. at 16-17. It also bears
noting that the court did adopt a “reasonable probability”
standard, not a “reasonable possibility” test, which would have
proven much easier for defendants to satisfy, but would also
have undermined plea finality.
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II.
I concur in the majority opinion because it rightly notes
that the nature of the district court’s involvement here lent
itself to ready interpretation of a coerced plea agreement. The
court handed out an assertedly more favorable sentence after a
plea of guilty and threatened a “less pleasant sentence” if the
defendant exercised his bedrock right to proceed to trial. J.A.
172. In addition the “close temporal proximity” between the
court’s comments and the reversal of field on the defendant’s
part resulting in a plea of guilty further augments the
appearance of unwarranted judicial interference.
Crucial to my concurrence is the majority’s recognition
that other scenarios may be quite different from this case.
Specifically judicial involvement may be more cursory than here.
Or it may be that the plea agreement, unlike here, was entered
prior to the trial court’s alleged involvement. Or it may be
again that a longer lapse of time attenuates any causal
connection between a trial court’s comments and a defendant’s
decision to plead guilty. Further, a Rule 11 plea hearing
replete with safeguards to ensure the voluntary and intelligent
nature of the plea may be a factor reinforcing the application
of Rule 11’s harmless error standard. See Davila, 133 S. Ct. at
2149-50. Finally, the prospect of defendants blowing hot and
26
cold as to their intentions to plead or go to trial would verge
on sandbagging and not commend a challenge on appeal.
The factual scenarios are many and varied, and as the
majority emphasizes, the case rises or falls on the “facts and
circumstances” of the particular case. Maj. Op. at 15 (quoting
Davila, 133 S. Ct. at 2149). This case is a close one, because
the record hints at the kind of defendant gamesmanship that
often masquerades as change of heart both on whether to proceed
to trial or, in other cases, whether to exercise one’s Faretta
right to proceed pro se. See Faretta v. California, 422 U.S. 806(1975). The majority has carefully explained why on the facts
here, the defendant should be accorded the benefit of the doubt.
The totality of the circumstances persuades me as well that the
heavy arsenal of judicial authority was deployed to dissuade a
defendant from exercising his fundamental right to a fair trial.
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