UNITED STATES of America, Plaintiff-Appellee, v. Savino BRAXTON, Defendant-Appellant.
No. 13-4491.
United States Court of Appeals, Fourth Circuit.
Argued: March 26, 2015. Decided: April 28, 2015.
784 F.3d 240
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.
PAMELA HARRIS, Circuit Judge:
For months, Savinо 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
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 government might choose to file a prior felony information under
Meanwhile, on November 19, 2012, Tuminelli‘s fears were realized: The government indeed filed a prior felony information under
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 pleа agreement formally offered by the government.1 Under the terms of the rejected plea agreement, Braxton faced a minimum of ten years’ imprisonment, 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 neverthеless insisted on proceeding to trial to “test[] the validity of the weight of the drugs.” J.A. 253. Tuminelli, for his part, took the position that Braxton should have accepted the plea agreement.
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 been involuntary. Braxton contended that he had been “eager to go to trial,” but had been pressured to plead guilty by thе 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
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 committеd 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, 124 S.Ct. 2333, 159 L.Ed.2d 157 (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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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 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 Brаxton 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 advisеd. See Sanya, 774 F.3d at 821.
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
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 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—spеcifically, 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 negotiatiоns.” 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 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.
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.
1.
The government argues that no error can have occurred in this case because Braxton stated during his
Nor is there anything else about the plea colloquy here that obviates the
2.
The government‘s more sustainеd 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, 95 S.Ct. 2525, 45 L.Ed.2d 562 (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, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). We disagree.
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, 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
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 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 govern-
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, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (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 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