UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4633
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL N. LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:05-cr-00108-IMK)
Submitted: July 25, 2007 Decided: August 3, 2007
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Timothy M. Sirk, Keyser, West Virginia, for Appellant. Sharon L.
Potter, United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael N. Lewis appeals from his convictions for various
cocaine base offenses. On appeal, he asserts that the district
court abused its discretion in denying his motion to withdraw his
guilty plea and improperly participated in plea negotiations. With
regard to the motion to withdraw the guilty plea, we have reviewed
the briefs and record and find no reversible error. Accordingly,
we affirm for the reasons stated by the district court. (J.A. at
278-92).
Turning to Lewis’s claim that the district court
improperly participated in plea negotiations, we note that Rule
11(c) of the Federal Rules of Criminal Procedure “governs guilty
pleas and clearly prohibits a court from participating in plea
negotiations.” United States v. Bradley, 455 F.3d 453, 460 (4th
Cir. 2006). Because this issue was not raised below, review is for
plain error, and Lewis must show that any errors affected his
substantial rights. United States v. Young, 470 U.S. 1, 15-16
(1985).
Lewis asserts that the court made numerous comments
during his plea hearings* that were erroneous and coercive,
including comments about potential sentences and advice that a
trial might result in a more severe sentence. However, a review of
*
Lewis had three Rule 11 hearings. The first two were aborted
when Lewis decided not to plead guilty.
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Lewis’s cites shows that these comments took place during Lewis’s
aborted plea hearings. While there appears to be nothing untoward
in the court’s attempts to make sure Lewis understood his
sentencing exposure and options, any errors did not affect Lewis’s
substantial rights, because he did not plead guilty and the plea
agreements that had been negotiated were not accepted, even after
the allegedly “coercive” comments. Lewis points to no improper
judicial comments or actions during his completed Rule 11 hearing,
where he pled guilty without a plea agreement.
Lewis additionally points to judicial comments during the
hearing on his motion to withdraw his guilty plea and his
sentencing. Specifically, the court repeatedly labeled Lewis a
“liar.” Again, these statements could have had no effect on
Lewis’s plea, which had already been accepted. See United States
v. Cannady, 283 F.3d 641, 644 (4th Cir. 2002) (holding that there
was no violation of Rule 11(c)(1) where court’s comments postdated
the agreement of the parties). Moreover, Lewis’s credibility was
a material issue in the motion to withdraw hearing. Thus, the
court was not only permitted, but required, to rule on whether his
testimony was truthful. Accordingly, we conclude that any improper
comments by the district court did not affect Lewis’s substantial
rights. Thus, there was no plain error below.
Based on the foregoing, we affirm Lewis’s convictions.
We deny Lewis’s motion to file a supplemental brief. We dispense
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with oral argument, because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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