United States v. R. Kerr, III ( 2020 )

Case: 19-10914 Document: 00515371553 Page: 1 Date Filed: 04/03/2020
REVISED April 2, 2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10914 April 2, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
R. V. KERR, III,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CR-78-15
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
R.V. Kerr, III, appeals his guilty plea conviction for conspiracy to possess
with intent to distribute a controlled substance, for which he was sentenced to
a twenty-year prison term and four years of supervised release. See 21 U.S.C.
§ 846. Kerr argues that his guilty plea was unknowing and involuntary
because he was confused about the penalties he faced—a minimum of five
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
*
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 19-10914
years and maximum of forty. See id. § 841(b)(1)(B). He also contends there
was improper judicial participation in the plea process.
Because Kerr did not raise these objections in the trial court, where any
confusion that did exist could have been easily clarified, we review for plain
error. See Puckett v. United States, 556 U.S. 129, 135-36 (2009). Kerr’s appeal
fails at the first requirement of that demanding standard of review as there
was no error.
At the plea hearing, the magistrate judge arraigned Kerr with ten of his
codefendants (the indictment charged 36 people with a methamphetamine
conspiracy). When the magistrate judge asked whether each defendant
understood that a guilty plea would result in punishment “somewhere within
the range of punishment that is provided by statute,” Kerr answered yes. And
like the other defendants, Kerr had already signed a factual resume stating
the penalties for his offense—five to forty years. The prosecutor then read the
penalties for three defendants identified by name—Anderson, Powers, and
Bennett—and then stated that the penalties for “the remaining defendant[s]”
included a sentence of five to forty years of imprisonment and a supervised
release term of not less than four years. Immediately thereafter, the
magistrate asked those remaining defendants whether they understood that a
guilty plea would subject them to those penalties. When called by name, Kerr
answered yes. When the court asked Kerr whether he had any questions, Kerr
said no. Kerr then pleaded guilty, agreed that he had signed his factual
resume, and answered yes when asked by name if he understood the factual
resume. After all that, the magistrate accepted the plea.
Kerr contends that this “group plea” rendered his plea unknowing
because he was confused about the sentence he faced. But the plea complied
with both Rule 11(b)(1)(H), which requires the court to advise the defendant of
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maximum penalties, and Rule 11(b)(1)(I), which requires the same advisement
for mandatory minimums. Kerr acknowledged during the hearing that he
understood both the oral and written notice of his sentencing exposure. A
defendant’s “solemn declarations in open court” concerning the knowing and
voluntary nature of the plea “carry a strong presumption of verity.” United
States v. McKnight, 570 F.3d 641, 649 (5th Cir. 2009) (internal quotation marks
and citation omitted). A defendant will not ordinarily be heard to recant
testimony he gave under oath at his plea hearing. United States v. Cervantes,
132 F.3d 1106, 1110 (5th Cir. 1998). Kerr answered yes when the magistrate
judge asked if he understood that his guilty plea could result in a sentence
within the statutory range. He again answered yes when asked if he
understood that the statutory range was not less than five nor more than forty
years of imprisonment, with a supervised release term of not less than four
years. When the magistrate judge asked Kerr whether he had any questions,
he answered no. Kerr also affirmed that he understood and had signed the
factual resume, which twice stated the minimum and maximum penalties.
What is more, Kerr did not move to withdraw his guilty plea after reviewing
the presentence report’s recitation of the statutory imprisonment range. See
United States v. Alvarado-Casas, 715 F.3d 945, 954-55 (5th Cir. 2013).
Given the strong presumption of truthfulness attached to his
rearraignment testimony—testimony that is directly at odds with his current
intimation of confusion at the hearing—Kerr cannot show Rule 11 error or that
his guilty plea was unknowing.
After arguing that the magistrate judge did too little at the
rearraignment, Kerry next essentially argues that he did too much by
intervening in the plea decision. What was the intervention? Holding a group
rearraignment and failing at times to personally address Kerr. This comes
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nowhere close to the judicial participation that violates Federal Rule of
Criminal Procedure 11(c)(1). See, e.g., United States v. Draper, 882 F.3d 210,
215 (5th Cir. 2018) (noting that we have found such violations when the judge’s
“statements could be construed as predictive of the defendant’s criminal-justice
outcome, suggestive of the best or preferred course of action for the defendant;
or indicative of the judge’s view as to guilt”). Complying “with the duties
mandated by Rule 11(b)” does not amount to improper participation. Id.
AFFIRMED.
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