Case: 20-30181 Document: 00515667844 Page: 1 Date Filed: 12/09/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 9, 2020
No. 20-30181
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Derrick Curry,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:19-CR-70-1
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Derrick Curry pleaded guilty, pursuant to a written plea agreement, to
possessing a firearm after felony conviction and was sentenced to 51 months
of imprisonment. Prior to sentencing, months after Curry initially pleaded
guilty and signed his plea agreement, the district court retook the plea
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-30181
because Curry expressed concerns that the initial plea was entered in a
witness room, not a courtroom. Prior to admonishing Curry at the second
hearing, the district court explained that it had received the presentence
investigation report (PSR) and that it intended to sentence Curry in
accordance with what it told the prosecutor and defense counsel in chambers.
On this basis, Curry contends that the district court violated Federal Rule of
Criminal Procedure 11(c)(1), which prohibits district courts from
participating in plea negotiations, when it advised Curry and his counsel of
its intended sentence before the second plea hearing. He argues that it is
reasonably probable that, but for the “highly coercive atmosphere” created
by these statements, he would have gone to trial.
As the parties agree, we review Curry’s claim for plain error because
he did not object on this basis to the district court. United States v. Draper,
882 F.3d 210, 215 (5th Cir. 2018). To establish plain error, Curry must show
(1) an error, (2) that was “clear or obvious, rather than subject to reasonable
dispute,” and (3) that affected his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). “‘[A] defendant who seeks reversal of his
conviction after a guilty plea, on the ground that the district court committed
plain error under Rule 11, must show a reasonable probability that, but for the
error, he would not have entered the plea.’” United States v. Davila, 569 U.S.
597, 608 (2013) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83,
(2004)). If these conditions are met, we have the discretion to correct the
error and should do so if it (4) “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Rosales-Mireles v. United States,
138 S. Ct. 1897, 1905 (2018) (cleaned up).
Here, even assuming that the district court committed an error that is
clear or obvious, Curry fails to show that it affected his substantial rights. We
consider the question “in light of the full record.” Davila, 569 U.S. at 612.
Curry signed a plea agreement and entered a guilty plea months before the
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No. 20-30181
challenged statements. As Curry himself explains, the second plea hearing
was held “out of an abundance of caution.” Finally, nothing in the record
suggests the district court pressured or incentivized Curry by conveying a
belief that a plea would be in his best interest. Given these facts, Curry fails
to show a reasonable probability that he would have proceeded to trial but for
the district court’s comments. See id., 569 U.S. at 608.
AFFIRMED.
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