United States v. John Rillo , 664 F. App'x 311 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4082
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN ADAM RILLO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00341-WO-1)
Submitted: October 20, 2016 Decided: November 16, 2016
Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Cheryl D. Andrews, HOLTON LAW FIRM, PLLC, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Clifton Thomas Barrett, Michael Francis Joseph, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Rillo (“Appellant”) appeals his convictions for
possession of pseudoephedrine with the intent to manufacture
methamphetamine and possession of firearms in furtherance of a
drug trafficking crime, and his resulting sentence. Appellant
claims the district court erred in, inter alia, impermissibly
interfering with plea discussions and failing to depart downward
in reaching his sentence. Finding no error, we affirm.
I.
On June 30, 2014, a grand jury in the Middle District
of North Carolina returned a four-count indictment against
Appellant, which included three counts related to the
manufacture of methamphetamine, and one count involving
possession of stolen firearms. On August 27, 2014, Appellant’s
original counsel filed a motion to withdraw from representation
based on Appellant’s repeatedly-expressed desire for new
counsel. The district court held a hearing on the motion on
September 3. During that hearing, Appellant expressed his
concerns that his attorney was “openly discussing [his] case
with the district attorney without [his] permission.” J.A. 17. 1
He also explained that his attorney had asked Appellant if he
1 Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
2
would be willing to provide information about other individuals
to the Government.
The district court then asked a series of questions
about the concept of substantial assistance. The court asked
questions such as, “During your time in custody, have you ever
heard the term ‘substantial assistance’?” and “Nobody in jail
has ever said a word to you about cooperating . . . [w]ith the
Government, substantial assistance, departure, 5K[?] You ever
heard any of those?” J.A. 21-23. Appellant answered that he
had heard the terms but did not know what they meant. The court
then asked defense counsel, “[H]as the Government asked if
[Appellant] would be interested in cooperating, or have you
explored that?” to which counsel replied, “I have, Your Honor,
and I’ve shared that with [Appellant].” Id. at 24.
The district court then pondered whether to relieve
counsel of representation, stating that some of Appellant’s
statements conflicted with one another: for example, Appellant
said he did not review discovery materials but did read a police
report; and Appellant told the court “the district attorney
wants to know if [I] know anything about stolen guns [or]
breaking and enterings,” but he nonetheless “d[id]n’t know
anything about substantial assistance.” J.A. 18, 24. The court
found his statements, especially about substantial assistance,
“to be almost inherently unreliable.” Id. at 24-25. The
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Government attorney then explained he “was interested in
[Appellant’s] cooperation,” but “apparently he’s not interested
in cooperating. That’s fine with me. That’s the end of that as
far as I’m concerned.” Id. at 25. But the attorney admitted he
and defense counsel had “productive conversations about . . .
what might be beneficial to [Appellant].” Id. at 26.
In ultimately deciding to relieve counsel of his
representation, the district court stated, “It’s kind of
inconceivable to me because . . . I don’t think I’ve ever seen a
case where a lawyer didn’t introduce questions about others
related to whether or not you want to pursue substantial
assistance. [N]othing makes any sense if you don’t.” J.A. 28.
The district court ultimately granted counsel’s motion to
withdraw because of Appellant’s “obstruction with respect to the
relationship between counsel and defendant.” Id.
Less than a month after that hearing, with the
assistance of new counsel, Appellant pled guilty to a two-count
Information charging him with possession of a List I chemical
(pseudoephedrine) with the intent to manufacture methamphetamine
(“Count One”); and possession of firearms in furtherance of a
drug trafficking crime (“Count Two”). At the plea hearing, the
district court conducted a plea colloquy during which Appellant
did not attempt to withdraw his plea and did not claim he was
pleading guilty under any duress or coercion. To the contrary,
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Appellant indicated that no one had “in any way attempted to
force [him] to plead guilty against [his] wishes,” and he was
“fully satisfied” with his new counsel’s representation and
advice. J.A. 58, 53.
On December 19, 2014, the district court held the
sentencing hearing. The presentence report (“PSR”) calculated
Appellant’s criminal history at category V and his total offense
level at 19, for a United States Sentencing Guidelines
(“Guidelines”) range of 57-71 months on Count One. The PSR also
indicated that Count Two carried a mandatory consecutive minimum
term of five years. 2 Appellant’s counsel argued for a downward
departure on Count One, noting, “[T]he Court does have the
authority to depart downward when a person’s criminal history
category overstates the seriousness of their prior criminal
history activity.” J.A. 80-81. She explained, “[T]he bulk of
[Appellant’s crimes] are traffic violations which . . . now
under North Carolina State law . . . have been demoted in the
seriousness of their . . . nature.” Id. at 81. She also
explained that Appellant’s history did not match other
defendants with category V criminal histories. In the end, she
urged the district court to depart downward and assign Appellant
2 The Government did not move for a downward adjustment of
Appellant’s offense level based on substantial assistance.
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to a criminal history category III, which would have resulted in
a Guidelines range of 37-46 months of imprisonment. The
Government also advised the court it had no evidence that
Appellant had been distributing methamphetamine or
pseudoephedrine in the area, and Appellant’s name had never been
mentioned by other methamphetamine users and sellers in the
area.
The district court declined to depart downward,
however, explaining, “[A]lthough recognizing my authority to
depart . . . I don’t find that a criminal history five
overstates the seriousness of [Appellant’s] criminal conduct.”
J.A. 91. It then sentenced Appellant to 57 months of
imprisonment on Count One and to a consecutive 60 months of
imprisonment on Count Two.
Appellant filed a timely notice of appeal, and
numerous formal and informal briefs. We focus on two of the
main issues raised in these briefs: whether the district court
impermissibly interfered with plea discussions in contravention
of Federal Rule of Civil Procedure 11(c)(1) and United States v.
Davila, 133 S. Ct. 2139 (2013); and whether it erred in
declining to depart downward in sentencing Appellant. 3
3
We have considered each of the remaining issues raised by
Appellant, but we find them to fall outside the scope of our
review or to be without merit.
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II.
We first address whether the district court
impermissibly interfered with plea discussions in its
explanation of and questions about substantial assistance during
the motion-to-withdraw hearing. Because Appellant did not
object to the district court’s questioning at the hearing, we
review his claim for plain error. See United States v. Bradley,
455 F.3d 453, 462 (4th Cir. 2006). Under the plain error
standard, Appellant must show “(1) there was an error; (2) the
error is plain; and (3) the error affects substantial rights.
We may then exercise our discretion to correct the error if it
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” United States v. White, --- F.3d ---,
2016 WL 4717943, at *6 (4th Cir. Sept. 9, 2016) (citations and
internal quotation marks omitted).
Appellant claims that by discussing “substantial
assistance,” the district court was “coercing [Appellant] to
provide [] help [to] both his Attorney, and the Government . . .
thus seeking information on other so called local cases, in
their hopes that [Appellant] would cooperate.” Appellant’s
Informal Br. 2, United States v. Rillo, No. 15-4082 (4th Cir.
Feb. 13, 2015; filed Oct. 19, 2015), ECF No. 19. Appellant
believes the court “instill[ed] fear in him . . . in [his]
choice to plead or go to trial”; the Government “used the ‘haze’
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of coercion and fear to its[] advantage . . . to further
compound [Appellant’s] heightened-intimidation, to poke him to
plead”; and the court and Government “act[ed] in a colluded, or
concerted effort to coerce or scare [Appellant] into seeking
substantial assistance.” Id. at 2, 4.
The rules of criminal procedure provide, “An attorney
for the government and the defendant’s attorney . . . may
discuss and reach a plea agreement. The court must not
participate in these discussions.” Fed. R. Crim. P. 11(c)(1)
(emphasis supplied). “Nothing in Rule 11’s text, however,
indicates that the ban on judicial involvement in plea
discussions, if dishonored, demands automatic vacatur of the
plea without regard to case-specific circumstances.” United
States v. Davila, 133 S. Ct. 2139, 2148 (2013). On this point,
“particular facts and circumstances matter.” Id. at 2149.
In analyzing whether a court impermissibly interfered
with plea discussions, we look to “judicial comments” and other
indicia of involvement, such as whether the court influenced or
“initiated plea discussions.” Bradley, 455 F.3d at 462. We
will not find reversible error unless “it was reasonably
probable that, but for the [court’s participation], [Appellant]
would have exercised his right to go to trial.” Davila, 133
S. Ct. at 2150. In answering that question, we look to the
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court’s comments “not in isolation, but in light of the full
record.” Id.
Taking the hearing as a whole, we fail to see how the
court’s comments could be construed as interference in or
initiation of plea discussions. For one thing, the hearing was
not a plea hearing, but a motion-to-withdraw hearing, and the
court’s focus remained on the quality of representation of
defense counsel. Indeed, the comments about substantial
assistance were not to urge Appellant to provide such assistance
in contemplation of a plea, but to ascertain whether his counsel
explained what it was and how it could help him. The court
never told Appellant he should provide substantial assistance to
the Government, or that he would get a higher sentence if he did
not do so.
This case is markedly different from others where this
court has found impermissible interference with the plea
process. See, e.g., United States v. Braxton, 784 F.3d 240, 242
(4th Cir. 2015) (Rule 11 error where district court “repeatedly
spoke in favor of the plea agreement, opining that it would be
best for [the defendant] to take the government’s offer and
forgo trial”); United States v. Sanya, 774 F.3d 812, 816 (4th
Cir. 2014) (Rule 11 error where, before plea deal had been
struck, district court repeated that a plea was in the
defendant’s best interest, strongly suggested the defendant
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would receive a more favorable sentence if he pled guilty, and
commented on the strength of the Government’s case); Bradley,
455 F.3d at 462 (Rule 11 error where the district court
“initiated plea discussions, advised the Defendants that they
might ‘be better off pleading to the indictment,’ [and]
suggested that they would likely receive life sentences if they
went to trial”). In fact, in the case at hand there was no plea
deal even on the table; the Government admitted Appellant’s lack
of interest in cooperating was “the end of that.” J.A. 25; cf.
United States v. Bierd, 217 F.3d 15, 21 (1st Cir. 2000) (no
error where the remarks of the court did not take place in the
context of plea negotiation discussions, but rather, in the
context of a motion for severance).
Rather, this case is more akin to situations in which
the reviewing court “f[ou]nd nothing coercive about the district
judge’s comments.” United States v. Cannady, 283 F.3d 641, 642,
645 (4th Cir. 2002) (no Rule 11 error where, after defendant and
the Government had reached a plea agreement, defendant began to
“reopen the negotiation process” at the plea hearing regarding
his waiver of collateral review and the court stated, “I’m not
going to waste time by taking a guilty plea and then having him
file a 2255 . . . . [E]ither he decides to waive the 2255, or
we are going to go to trial”); United States v. Telemaque, 244
F.3d 1247, 1248-49 (11th Cir. 2001) (per curiam) (no Rule 11
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error where defendant expressed dissatisfaction with his
attorney for not mentioning the possibility of sentence
reduction for acceptance of responsibility, and the district
court “then pointed out . . . that the offense-level reduction
was up to the court and as yet undecided”); Bierd, 217 F.3d at
21 (holding that court’s mention of a guilty plea and acceptance
of responsibility to defense counsel was not reversible error);
see also United States v. Frank, 36 F.3d 898, 903 (9th Cir.
1994) (Rule 11 “does not establish a series of traps for
imperfectly articulated oral remarks.”).
For these reasons, the district court did not err, let
alone plainly err, in its questioning and commentary at the
motion-to-withdraw hearing.
III.
Appellant also claims the district court erred in
failing to depart downward when sentencing him. However, “[a]
district court’s decision not to depart from the Sentencing
Guidelines is not reviewable unless the court mistakenly
believed that it lacked authority to depart.” United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007) (internal quotation
marks omitted). The sentencing transcript is clear that the
district court knew it had the authority to depart, but decided
not to do so. Therefore, this issue is unreviewable.
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IV.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
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