United States v. Savino Braxton

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4491

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SAVINO BRAXTON,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:09-cr-00478-RDB-1)

Argued: March 26, 2015 Decided: April 28, 2015

Before NIEMEYER, KING, and HARRIS, Circuit Judges.

Vacated and remanded by published opinion. Judge Harris wrote
the opinion, in which Judge Niemeyer and Judge King joined.

ARGUED: Andrew Robert Szekely, LAW OFFICES OF ANDREW R. SZEKELY,
LLC, Greenbelt, Maryland, for Appellant. John Francis Purcell,
Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
PAMELA HARRIS, Circuit Judge:
For months, Savino Braxton (“Braxton”) insisted on

exercising his right to go to trial, despite the substantial

mandatory minimum penalty he would face if convicted. On what

would have been the first day of trial, however, Braxton

reversed course and accepted the government’s plea offer.

Because the district court impermissibly participated in the

discussions that led to Braxton’s change of heart, we vacate and

remand for further proceedings.

I.

Braxton was charged with possession with intent to

distribute one kilogram or more of heroin, in violation of 21

U.S.C. § 841(a) (2012). Ordinarily, this charge carries a

mandatory minimum penalty of ten years’ imprisonment. 21 U.S.C.

§ 841(b)(1)(A) (2012). But where the defendant, like Braxton,

has a prior felony drug conviction, the government may elect to

file a prior felony information, effectively doubling the

mandatory minimum to twenty years’ imprisonment. See id.; 21

U.S.C. § 851(a) (2012).

In the fall of 2012, Braxton discussed the possibility of a

guilty plea with his court-appointed counsel, Arcangelo

Tuminelli (“Tuminelli”). During those discussions, Tuminelli

expressed concern that if Braxton did not plead guilty, the

2
government might choose to file a prior felony information under

§ 851. Unswayed, Braxton refused to plead guilty and moved for

the appointment of new counsel, complaining that Tuminelli was

“not interested in taking the case to trial” and had “vehemently

goad[ed] [him] to plead guilty.” J.A. 36-37. During a hearing

on that motion, the district court indicated that it did not

“find it really to be a situation where [Braxton] should get

substitute counsel,” and Braxton agreed to withdraw his request.

J.A. 112.

Meanwhile, on November 19, 2012, Tuminelli’s fears were

realized: The government indeed filed a prior felony

information under § 851. As a result, Braxton faced a mandatory

minimum penalty of twenty years’ imprisonment if convicted after

trial. At the time, he was fifty-five years old.

Trial was scheduled to begin on February 11, 2013. That

morning, the district court memorialized for the record that

Braxton had received and rejected a plea agreement formally

offered by the government. 1 Under the terms of the rejected plea

agreement, Braxton faced a minimum of ten years’ imprisonment,

1
Under Missouri v. Frye, 132 S. Ct. 1399 (2012), a defense
counsel’s failure to communicate a formal plea offer may
constitute ineffective assistance of counsel. To guard against
such claims, the Supreme Court has suggested that “formal offers
. . . be made part of the record . . . before a trial on the
merits, . . . to ensure that a defendant has been fully advised
before those . . . proceedings commence.” Id. at 1409.

3
and the government promised to ask for no more than fifteen

years. In the words of the district court, the government had

“essentially” offered to “withdraw the 851 notice” in exchange

for a guilty plea. J.A. 237. On the record, Braxton confirmed

that he understood the offer, and that he nevertheless wished to

reject it and proceed to trial.

Immediately thereafter, Braxton orally requested that he be

appointed new counsel or, in the alternative, that he be

permitted to represent himself. The district court promptly

denied both requests. First, the district court found that

there was no need for new counsel because Braxton’s conflict

with Tuminelli was not “so great that it results in any lack of

communication.” J.A. 240. Next, the district court noted that

Braxton’s request to represent himself was being made literally

“on the morning of trial” and therefore was “not timely.” J.A.

252.

Although Braxton’s requests for new counsel and self-

representation already had been denied, discussion of Braxton’s

grievances against Tuminelli continued. At core, attorney and

client disagreed about whether Braxton should accept the

government’s plea agreement or go to trial. Although Braxton

admitted that he was “guilty” of possessing with intent to

distribute some quantity of heroin, he nevertheless insisted on

proceeding to trial to “test[] the validity of the weight of the

4
drugs.” J.A. 253. Tuminelli, for his part, took the position

that Braxton should have accepted the plea agreement.

Drawn into this dispute, the district court repeatedly

spoke in favor of the plea agreement, opining that it would be

best for Braxton to take the government’s offer and forgo trial.

The court told Braxton, “I am not favorably inclined towards

having you go to trial and trigger a mandatory minimum of 20

years, as opposed to a plea offer that’s down in the 10 to 15

year range in terms of years of your life.” J.A. 265. In the

court’s words, Braxton was “hurting [his] own interest” by

choosing to go to trial. J.A. 267. 2 Given the sentencing

“scenario,” the district court found Braxton’s position

difficult to comprehend, comparing the decision to go to trial

to “put[ting] [your] head in a buzz saw that makes absolutely no

sense.” J.A. 272. At the conclusion of this first series of

2
See also J.A. 267-68 (characterizing “going to trial and
doubling a mandatory minimum” to twenty years as “just almost
silly when [Braxton was] in a potential range of 10 to 15
years”); J.A. 268 (characterizing the plea agreement as a “far
more sensible way to approach” the drug quantity question than
going to trial); J.A. 271 (emphasizing that, if Braxton accepted
the plea agreement, the court would not be “bound” by the
twenty-year mandatory minimum triggered by the § 851 notice, and
would therefore be “free to sentence [Braxton] to 10 years”);
J.A. 276 (stating that Braxton’s concern regarding quantity and
sentencing was an issue that could “be addressed in another
context” and “d[idn’t] need to be addressed in terms of a jury
trial, where [he] face[d] the potentiality of a 20-year minimum
mandatory” and the court’s “hands [would be] tied” with respect
to a more lenient sentence).

5
remarks, the district court instructed Braxton “to talk to [his]

lawyer” and ordered a ten-minute recess. J.A. 276. Thirty

minutes later, the district court briefly reconvened in order to

excuse the jury for lunch. At that time, the district court

again advocated for the rejected plea agreement, declaring, “[A]

defendant shouldn’t put his head in a vice [sic] and face a

catastrophic result just over a dispute over drug quantity.

That’s the point.” J.A. 277.

During the forty-five-minute lunch recess that immediately

followed, Braxton changed his mind and accepted the same plea

agreement that he had rejected that morning. The district court

conducted a Rule 11 colloquy as soon as it reconvened in the

afternoon. Referring to that morning’s discussion of the plea

agreement, the district court explained that it had been

motivated by concern “over [Braxton’s] unwisely proceeding to

trial before a jury.” J.A. 284. At the same time, the district

court asked Braxton whether he had “felt forced or threatened or

pushed” to plead guilty. J.A. 285. Braxton replied, “No, sir.”

J.A. 285. Satisfied, the district court accepted Braxton’s

guilty plea and scheduled sentencing.

In May 2013, Braxton filed a pro se motion to withdraw his

guilty plea on the basis of ineffective assistance of counsel.

At his June 17, 2013, sentencing hearing, Braxton again asked to

withdraw his guilty plea, this time arguing that his plea had

6
been involuntary. Braxton contended that he had been “eager to

go to trial,” but had been pressured to plead guilty by the

district court. J.A. 329. The district court denied Braxton’s

request and sentenced him to eleven and one-half years, or 138

months, of imprisonment. Braxton timely appealed.

II.

A.

Under Federal Rule of Criminal Procedure 11(c)(1), “[a]n

attorney for the government and the defendant’s attorney . . .

may discuss and reach a plea agreement.” Courts, however, are

expressly prohibited from “participat[ing] in these

discussions.” Id. This prohibition, added in 1974, was

intended to eliminate the previously “common practice” of

judicial participation in plea negotiations, United States v.

Davila, 133 S. Ct. 2139, 2146 (2013) (quoting Advisory

Committee’s 1974 Note on Subd. (e)(1) of Fed. R. Crim. P. 11,

18 U.S.C.App., p. 1420 (1976 ed.)), and serves three principal

interests. First, “it diminishes the possibility of judicial

coercion of a guilty plea.” United States v. Sanya, 774 F.3d

812, 815 (4th Cir. 2014) (quoting United States v. Bradley, 455

F.3d 453, 460 (4th Cir. 2006)). Second, “it protects against

unfairness and partiality in the judicial process.” Id. And

finally, “it eliminates the misleading impression that the judge

7
is an advocate for the agreement rather than a neutral arbiter.”

Id.

We recently had occasion to apply these principles in

United States v. Sanya, 774 F.3d 812 (4th Cir. 2014). In that

case, we found that the district court committed plain error by

“repeatedly intimat[ing] that a plea to the . . . charges was in

[the defendant’s] best interests” and “strongly suggest[ing]

that [the defendant] would receive a more favorable sentence if

he agreed to plead guilty.” Id. at 816. Because these comments

occurred “just five days” before the defendant changed his mind

about going to trial and executed a plea agreement, we found

that there was a “reasonable probability that, but for the

error, he would not have entered the plea,” and that the error

had therefore affected his “substantial rights.” Id. at 817-18

(quoting United States v. Dominguez Benitez, 542 U.S. 74, 83

(2004)). Finally, we found that, in light of “the critical

interests served by the prohibition” on judicial participation

in plea discussions, our refusal to notice the error would

“seriously affect the fairness, integrity or public reputation

of judicial proceedings.” Id. at 821 (quoting United States v.

Olano, 507 U.S. 725, 736 (1993); Bradley, 455 F.3d at 463). On

the basis of these findings, we concluded that the district

court had committed reversible error. Id. at 821-22. Because

8
this case is on all fours with Sanya, we are compelled to find

reversible error here as well. 3

First, as in Sanya, the district court made repeated

comments, doubtlessly well-intentioned, that nevertheless

suggested that a plea would be in Braxton’s best interest, and

that Braxton would receive a more favorable sentence if he

pleaded guilty. See id. at 816. The district court, for

instance, baldly stated that it was “not favorably inclined”

toward Braxton going to trial, J.A. 265, a course it described

as “almost silly,” J.A. 267-68, and compared to “put[ting] your

head in a buzz saw,” J.A. 272. The court also implied that a

plea would benefit Braxton at sentencing, warning Braxton that

while it would be “free to sentence [him] to 10 years” if he

took the plea, J.A. 271, its “hands [would be] tied” by the

twenty-year minimum if he rejected the plea and then lost at

trial, J.A. 276. This advice, moreover, had the unfortunate

effect of emphasizing for Braxton that the judge who was

counseling him to accept a plea was the same judge who would be

sentencing him, increasing the risk that Braxton would feel

coerced to do as the judge advised. See Sanya, 774 F.3d at 821.

3
Because we find that Braxton is able to satisfy the more
stringent plain-error standard of review applied in Sanya, we
need not decide whether the alleged Rule 11(c)(1) error in this
case was properly preserved for review under the harmless-error
standard.

9
 This is not a case involving a single or even a few brief

remarks by the court, or comments made only after a plea

agreement already has been reached. See id. at 816; cf. United

States v. Cannady, 283 F.3d 641, 644 (4th Cir. 2002) (finding no

error where district court’s comments were made after the plea

agreement had been executed). Instead, as in Sanya, the court’s

commentary was extensive and persistent, and continued unabated

throughout the morning session, again when the court reconvened

to recess for lunch, and even during the afternoon plea colloquy

itself. In Sanya, we found that such “repeated remarks clearly

constitute judicial participation in plea discussions, and

[that] the district court erred in engaging in them,” even if it

acted only with the best of intentions. 774 F.3d at 816. We

reach the same conclusion here. We also find that the error was

plain: As we held in Sanya, the rule against judicial

participation in plea discussions is longstanding, and “the

doctrine surrounding its interpretation is well-settled.” Id.

at 817; see also Bradley, 455 F.3d at 460 (Rule 11(c)(1)

“clearly prohibits a court from participating in plea

negotiations.”).

Our reasoning in Sanya guides our analysis of the

“substantial rights” inquiry in this case, as well. In this

context, a defendant’s substantial rights are affected if review

of the “full record” reveals a “reasonable probability” that the

10
error led him to enter the plea. 4 Sanya, 774 F.3d at 817

(quoting Dominguez Benitez, 542 U.S. at 83). As in Sanya, our

conclusion is driven largely by the timing of Braxton’s decision

to plead guilty: It was only in the immediate aftermath of the

district court’s error — specifically, during the forty-five-

minute lunch recess that followed the district court’s

admonition that Braxton “shouldn’t put his head in a vice [sic]

and face a catastrophic result . . . over drug quantity,” J.A.

277 — that Braxton reconsidered his long held position and

accepted the plea agreement. This exceedingly “close temporal

proximity weighs heavily in favor of finding that [Braxton’s]

decision to plead guilty was the result of the district court’s

involvement in the plea negotiations.” Sanya, 774 F.3d at 818

(finding standard met where defendant accepted plea within five

days of violation); see also Davila, 133 S. Ct. at 2149 (where

“guilty plea follow[s] soon after” error, the error is more

likely to be prejudicial). Indeed, it is difficult to conceive

4
In its brief, the government asserts that “[i]n the
context of a guilty plea, the defendant must demonstrate that he
would not have pled guilty but for the district court’s error.”
Gov. Br. 44 (emphasis added). That is incorrect. As we
explained in Sanya, “[t]he 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,” and a defendant “need not show that,
‘but for’ the court’s error, he would have gone to trial.” 774
F.3d at 819-20.

11
of any other factor that could have influenced Braxton during

this small window of time.

Finally, as we observed in Sanya, plain error involving

judicial participation in plea discussions “almost inevitably

seriously affect[s] the fairness and integrity of judicial

proceedings.” 774 F.3d at 821 (quoting Bradley, 455 F.3d at

463). This case is no exception to the general rule. As in

Sanya, the district court’s exhortations in favor of pleading

guilty were “repeated and direct” and “saturated the hearing.”

Id. That kind of sustained intervention on behalf of a plea

agreement — and concomitant forfeiture of the right to trial —

may reasonably be perceived “as inconsistent with the court’s

role as a neutral arbiter of justice,” id. (quoting United

States v. Baker, 489 F.3d 366, 375 (D.C. Cir. 2007)),

undermining public confidence in the court. Accordingly, and

after review of the entire record, we conclude that we must

follow Sanya and notice the plain error in this case.

B.

The government does not question our holding in Sanya,

arguing instead that Sanya and cases like it are distinguishable

from this one. We are not persuaded by the government’s various

efforts to distinguish Sanya, and dispense with each below.

12
 1.

The government argues that no error can have occurred in

this case because Braxton stated during his Rule 11 colloquy

that his plea was given voluntarily. We disagree. The very

premise of the rule at issue is that “a judge’s participation in

plea negotiation is inherently coercive,” creating an

unacceptable risk that a defendant will enter an involuntary

guilty plea in order to avoid offense to the court with the

power to preside over his trial and determine his sentence.

Bradley, 455 F.3d at 460 (quoting United States v. Barrett, 982

F.2d 193, 194 (6th Cir. 1992)). By itself, a defendant’s mere

statement that his plea was voluntary, made in response to

questioning by the very same judge whose apparent preferences

raised the specter of coercion in the first place, cannot dispel

that concern. Cf. Baker, 489 F.3d at 376 (finding reversible

error notwithstanding district court’s “attempt[] to remedy its

error during the plea colloquy”).

Nor is there anything else about the plea colloquy here

that obviates the Rule 11(c)(1) violation. On the contrary, the

plea colloquy in this case only exacerbates the error: Even

during the colloquy itself, the district court continued to

advocate against exercise of the right to trial and for the plea

agreement, sharing with Braxton its “concern over your

[Braxton’s] unwisely proceeding to trial before a jury,” J.A.

13
284, and its worry that Braxton would “unnecessarily jeopardize”

himself by failing to plead guilty, J.A. 285. Braxton’s

statement that his plea was freely given came directly on the

heels of these judicial exhortations, and we cannot be confident

that it was not itself a product of the Rule 11(c)(1) error in

this case. See Barrett, 982 F.2d at 194 (court intervention on

behalf of a plea “raise[s] the possibility, if only in the

defendant’s mind, that a refusal to accept the judge’s preferred

disposition would be punished”). 5

2.

The government’s more sustained argument is that in this

case, as opposed to Sanya, the district court was required to

remark upon the advantages of the plea agreement and

disadvantages of trial in order to determine whether Braxton’s

request to represent himself was “knowing and intelligent”

within the meaning of Faretta v. California, 422 U.S. 806

5
In addition to Braxton’s statement at the colloquy, the
government calls our attention to the court’s periodic
assurances that it was not in fact involving itself in the plea
negotiations. We have no doubt that the district court acted in
good faith, believing that it was in compliance with Rule
11(c)(1). But given that we have found to the contrary, we
attach no significance to its disclaimers. See Sanya, 774 F.3d
at 818 n.4. Nor do we attach any significance to Tuminelli’s
participation, if any, in the court’s discussion of the plea
agreement. See Bradley, 455 F.3d at 463 (“[W]e do not examine
whether defense counsel participated in the error.”) (emphasis
in original). And because we are applying the plain error
standard of review, defense counsel’s failure to object has no
independent significance.

14
(1975), as well as to ensure that the plea was effectively

communicated to Braxton as contemplated by the Supreme Court’s

recent holding in Missouri v. Frye, 132 S. Ct. 1399 (2012). We

disagree.

In this case, at least, the government’s argument is

foreclosed by the sequence of events on the day in question, in

which the district court first memorialized the government’s

plea offer under Frye, then denied Braxton’s motion to represent

himself under Faretta – and only then engaged in the commentary

regarding the plea agreement that is at issue here. At the very

opening of proceedings, the government, citing Frye, asked to

“memorialize . . . for the record” communication of its plea

offer to Braxton. J.A. 234. After Tuminelli agreed, the

government described the offer, and the court ensured that

Braxton understood the terms of the plea agreement he had

rejected. At this point, the court brought the Frye portion of

the proceedings to a definitive close: “Well, that’s fine. The

record will reflect you’ve been so advised of the plea offer in

this case. The defendant is ready to proceed to trial.” J.A.

238.

Similarly, the Faretta issue was promptly and fully

resolved before the comments that give rise to this case. When

Braxton moved to represent himself immediately after the plea

offer was put on the record, the court noted that the motion,

15
made on the morning of trial, was not timely. It went on,

however, to undertake the colloquy contemplated by Faretta,

ensuring that Braxton was aware of the “risk inherent in

proceeding without counsel” and highlighting specifically the

difficulty of making arguments to a jury and cross-examining

witnesses without the assistance of an attorney. J.A. 251. And

then the court resolved the Faretta issue in its entirety and in

no uncertain terms, denying Braxton’s motion for self-

representation on timeliness grounds: “[W]e’re ready – you may

be seated now. So I have denied your motion for self-

representation. I’ve noted the analysis. Clearly the main

factor is . . . this is not timely. It was not noted to anyone

here until suddenly this morning. So it’s not timely.” J.A.

255.

In short, it was only after it had recorded the rejected

plea offer and denied the Faretta motion for self-representation

that the district court engaged in the conduct that is the basis

of the Rule 11(c)(1) issue here. On this record, neither Frye

nor Faretta can distinguish this case from Sanya or excuse what

otherwise would be Rule 11 error.

In any event, and regardless of the timing, Faretta and

Frye would not justify the comments made here. In Faretta, the

Supreme Court held that before a defendant can be deemed to

“knowingly and intelligently” forfeit his right to counsel, “he

16
should be made aware of the dangers and disadvantages” of

representing himself at trial. 422 U.S. at 835 (internal

quotation marks omitted). 6 The district court, as noted above,

fully complied with that mandate when it advised Braxton of the

difficulties and risks inherent in self-representation, before

denying his motion as untimely. It is the court’s subsequent

comments in favor of the plea agreement that are at issue here —

comments that relate not to the dangers and disadvantages of

proceeding to trial without counsel, but rather the dangers and

disadvantages of proceeding to trial at all, and would have

applied with equal force if Braxton had gone to trial with

representation as without. See, e.g., J.A. 265 (district court

stating that he was “not favorably inclined towards having

[Braxton] go to trial”) (emphasis added). Even if, as the

government urges, something more than the standard Faretta

colloquy may be authorized when there is a plea agreement on the

6
The Supreme Court has identified the relevant “dangers and
disadvantages” to include the difficulty that a lay person will
face in “adher[ing] to the rules of procedure and evidence,
comprehend[ing] the subtleties of voir dire, examin[ing] and
cross-examin[ing] witnesses effectively, [and] object[ing] to
improper prosecution questions.” Iowa v. Tovar, 541 U.S. 77, 89
(2004) (quoting Patterson v. Illinois, 487 U.S. 285, 299 n.13
(1988)).

17
table — a question we need not resolve today — we are confident

that Faretta does not stretch so far. 7

Nor, contrary to the government’s suggestion, does Frye

require a district court to satisfy itself of the intelligence

of a defendant’s decision to exercise his right to trial instead

of accepting a plea offer. Frye and its companion case, Lafler

v. Cooper, 132 S. Ct. 1376 (2012), concern the duty of defense

counsel to advise their clients regarding formal plea offers;

they do not obligate or permit judges to give advice to

defendants on whether to accept such agreements. There is no

allegation in this case that Tuminelli either failed to inform

Braxton of the government’s plea offer in violation of Frye or

improperly advised Braxton to reject the offer in violation of

Lafler, and the record is plainly to the contrary. And the

7
For the same reason, we reject the government’s assertion
that Braxton invited any error by asking to represent himself.
As discussed above, a district court is not required to explain
a plea agreement — let alone recommend that a defendant take it
— in response to a request for self-representation. Nor did
Braxton otherwise request that the court explain or recommend
the plea agreement to him. In the absence of such a request,
the invited error doctrine is not relevant to our analysis. See
United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997)
(quoting United States v. Herrera, 23 F.3d 74, 75 (4th Cir.
1994)) (invited error doctrine applies when the court is asked
“to take a step in a case” and “complie[s] with such request”);
see also Sanya, 774 F.3d at 817 n.2 (invited error doctrine
inapplicable, notwithstanding defense counsel’s “allud[ing] to
the prospect of ‘global resolution’” and possible
“appreciat[ion] [for] the district court’s enthusiasm for a plea
and ‘global settlement’”).

18
district court, as described above, fulfilled its role under

Frye by memorializing the offer on the record at the

government’s request, prior to making the remarks at issue in

this case. Nothing more was required or justified by Frye.

III.

We have full confidence that the district court acted only

with the best of intentions, seeking a just resolution to the

serious charge that Braxton faced. Our careful review of the

record gives us no reason to think that the court intended to

coerce a guilty plea. Nevertheless, because we also conclude

that there is a reasonable probability that the district court’s

plain error affected Braxton’s substantial rights, and that our

failure to recognize this error would seriously undermine

confidence in the fairness of judicial proceedings, we vacate

Braxton’s sentence and guilty plea, and remand for further

proceedings. Although we have no doubt that the original

district judge could continue to preside fairly over this case,

we follow our usual practice and direct that the case be

assigned to a different judge on remand. See, e.g., Sanya, 774

F.3d at 822; Bradley, 455 F.3d at 465.

VACATED AND REMANDED

19