United States v. Oluwaseun Sanya

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

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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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