United States v. Artemio Pesina-Arano, 650 F. App'x 185

Defendant Artemio Pesina-Arano was convicted of illegal reentry following deportation and sentenced to 77 months.
On appeal he raised three challenges: (1) the district court improperly participated in plea discussions in violation of Fed. R. Crim. P. 11(c)(1); (2) the district court improperly assessed three criminal history points by aggregating a 2002 Kansas 12-month sentence with a 2007 probation-revocation 12-month sentence; and (3) the district court improperly applied a 16-level U.S.S.G. § 2L1.2(b)(1)(A)(i) drug-trafficking enhancement based on 2008 Kansas convictions for selling cocaine.
Pesina did not raise the Rule 11(c)(1) and § 2L1.2 challenges below; those arguments were raised for the first time on appeal.
At a pretrial docket call the district judge repeatedly stated defendants who go to trial will face larger sentences than those who plead guilty; Pesina nevertheless proceeded to trial.
The PSR reflected both the 2002 and 2007 Kansas sentences as 12 months, and the district court adopted the PSR’s aggregation finding because Pesina offered no sworn rebuttal.
The court affirmed the conviction and sentence in all respects.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court impermissibly participated in plea discussions (Rule 11(c)(1))	Court’s pretrial comments pressured Pesina to plead guilty, violating Rule 11(c)(1)	District court’s remarks were general warnings; no plea negotiation was underway and remarks did not prejudice Pesina	No reversible error under plain-error review; remarks did not affect substantial rights and no ongoing plea negotiation invoked Rule 11 prohibition
Whether the 2002 Kansas sentence and 2007 revocation sentence should be aggregated for criminal history points	Aggregation was improper or misapplied	PSR showed both sentences as 12 months; Pesina offered no sworn evidence to rebut	No clear error; district court permissibly adopted PSR finding and aggregated sentences exceeded 13 months
Whether § 2L1.2(b)(1)(A)(i) enhancement was inapplicable because Kansas offense covers gifting as well as selling	Enhancement improper because the Kansas statute criminalized giving (non-trafficking) as well as selling	Enhancement applies based on Martinez-Lugo precedent	Claim foreclosed by Fifth Circuit precedent (Martinez-Lugo); appeal rejected
Standard of review for first-raised-on-appeal claims	(implicit) error requires de novo or automatic vacatur	Plain-error review applies to Rule 11(c)(1) claims raised first on appeal	Plain-error review applies (citing Davila); no obvious or prejudicial error found

United States v. Davila, 133 S. Ct. 2139 (court’s participation in plea discussions reviewed for plain error when raised on appeal)
United States v. Pena, 720 F.3d 561 (5th Cir. 2013) (defendant’s perception of coercion matters in plea context)
United States v. Crowell, 60 F.3d 199 (5th Cir. 1995) (court participation in plea negotiations can require vacatur when it affects impartiality)
United States v. Reasor, 418 F.3d 466 (5th Cir. 2005) (Rule 11(c)(1) does not apply absent an ongoing plea negotiation)
United States v. Nava, 624 F.3d 226 (5th Cir. 2010) (standard for reviewing district court’s criminal-history findings)
United States v. Martinez-Moncivais, 14 F.3d 1030 (5th Cir. 1994) (aggregation of state sentences for criminal history)
United States v. Mir, 919 F.2d 940 (5th Cir. 1990) (district court may adopt PSR findings absent rebuttal)
Leverette v. Louisville Ladder Co., 183 F.3d 339 (5th Cir. 1999) (appellate review limits on facts presented first on appeal)
United States v. Vital, 68 F.3d 114 (5th Cir. 1995) (criminal history calculation review)
United States v. Martinez-Lugo, 782 F.3d 198 (5th Cir.) (forecloses challenge to § 2L1.2 enhancement for state drug convictions)