[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 11, 2008
No. 07-13878 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00531-CR-2-VEH-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD ORLANDO MCCRAY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 11, 2008)
Before BIRCH, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Richard Orlando McCray appeals from his conviction and 180-month
sentence after pleading guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). On appeal, he argues that: (1) there was an
insufficient factual basis to sustain his guilty plea and he did not sufficiently
understand the knowledge element of the offense when pleading guilty; (2) the
district court plainly erred at the plea colloquy by comparing the sentence he would
receive if he went to trial with the sentence he would receive if he pled guilty; and
(3) his 180-month sentence, imposed as the mandatory statutory minimum,
constituted cruel and unusual punishment, in violation of the Eighth Amendment.
After thorough review, we vacate and remand as to Issue (2), and therefore, need
not address McCray’s alternative arguments attacking his guilty plea or his
argument that his sentence violated the Eighth Amendment.
Federal Rule of Criminal Procedure 11(c)(1) provides, in part, that “[a]n
attorney for the government and the defendant’s attorney, or the defendant when
proceeding pro se, may discuss and reach a plea agreement. The court must not
participate in these discussions.” Fed. R. Crim. P. 11(c)(1). “The primary concern
of those who would dissociate the judge from the plea bargaining process has been
that judicial intervention may coerce the defendant into an involuntary plea that he
would not otherwise enter.” United States v. Corbitt, 996 F.2d 1132, 1134 (11th
Cir. 1993). We have interpreted Rule 11(c)(1) “as a bright line rule prohibiting the
participation of the judge in plea negotiations under any circumstances: it is a rule
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that, as we have noted, admits of no exceptions.” United States v. Johnson, 89
F.3d 778, 783 (11th Cir. 1996) (quotations and alterations omitted).
McCray did not object to this Rule 11 issue at the plea hearing, and thus, we
review the issue for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002);
United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). Instead of
conducting the normal four-prong plain-error analysis, however, we have stated
that “[j]udicial participation [in plea negotiations] is plain error, and the defendant
need not show actual prejudice.” Corbitt, 996 F.2d at 1135.
In United States v. Casallas, 59 F.3d 1173, 1178 (11th Cir. 1995), we held
that the prohibition on judicial participation in plea negotiations had been violated
and remanded the case to allow the defendant to withdraw his guilty plea:
As Casallas stood before the district court ready to return to Texas for
trial, the district court judge contrasted the fifteen-year minimum
mandatory that Casallas faced by going to trial in Texas with the
ten-year minimum mandatory that Casallas faced by pleading to the
conspiracy count. The judge stated: “if he pleads this afternoon he
would get a minimum mandatory of ten, apparently which is a lot
better than fifteen.” The judge followed this statement with additional
advice that Casallas “talk to his lawyer some and see if that is really
what he wants to do.”
Id. at 1177 (alteration omitted). Although we stated that the court’s comments
were “intended only to insure that Casallas was making an informed decision,” we
concluded that the statements “nonetheless crossed the line into the realm of
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participation” and required reversal. Id. at 1177-78. In Corbitt, we held that there
was a violation of the prohibition on judicial participation in plea negotiations
where the court gave the defendants until the following day to file plea agreements,
and told them that if they went to trial and were convicted, they would receive a
“fair sentence, fairly high.” 996 F.2d at 1133-35. We have subsequently stated
that “Casallas and Corbitt indicate that discussion of the penal consequences of a
guilty plea as compared to going to trial is inherently coercive, no matter how
well-intentioned.” Johnson, 89 F.3d at 783.
In this case, as in Casallas, the district court compared “the penal
consequences of a guilty plea as compared to going to trial.” Id. The court
repeatedly explained to McCray that the low-end of his applicable guideline range
would be 210 months’ imprisonment if he proceeded to trial, which would require
the court to conduct a downward variance in order for him to receive the statutory
minimum sentence, but that, if he pled guilty, no such variance would be required
for him to receive the statutory minimum. Furthermore, as in Casallas, McCray’s
ultimate decision to plead guilty -- after he had previously indicated an intent to
proceed to trial -- came on the heels of the court’s participatory comments
regarding the higher sentence he might receive if he went to trial.
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Thus, although we recognize that the district court was merely attempting to
ensure that McCray understood the consequences of his guilty plea, reversal is
required. Johnson, 89 F.3d at 783; Casallas, 59 F.3d at 1177-78. We therefore
conclude that the district court impermissibly participated in plea negotiations by
repeatedly comparing the higher sentence that McCray would likely receive if he
went to trial with the sentence that he would otherwise receive if he pled guilty.
Accordingly, we vacate McCray’s guilty plea and remand to the district
court to allow him to re-plead or proceed to trial.
VACATED AND REMANDED.
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