                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-4436


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL RANKINS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.   Terrence W.
Boyle, District Judge. (2:14-cr-00003-BO-1)


Argued:   October 28, 2016                 Decided:      January 11, 2017


Before GREGORY,    Chief   Judge,   and   KEENAN   and    FLOYD,   Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Richard Clarke Speaks, SPEAKS LAW FIRM, PC, Wilmington,
North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Appellant     Michael       Rankins       was   charged       with    armed    bank

robbery   and    aiding    and   abetting.           Prior    to   being    arraigned,

Rankins   attended    a    hearing    regarding        a   motion     he   had     filed.

During this hearing, the district court noted several times that

Rankins was unlikely to reach a plea bargain in the present case

because he had not done so in other cases.                         The court stated

that Rankins’s case was “open and shut” and that the trial would

only take “a day or two, then he’ll get life in prison.”                             J.A.

19–20.     The    court     also     detailed        the     government’s     evidence

against Rankins.

     Rankins eventually signed a plea agreement and pled guilty

to the charges.           Rankins now asks this Court to vacate his

guilty plea, arguing that the district court committed plain

error by involving itself in plea negotiations in violation of

Federal Rule of Criminal Procedure 11(c)(1).                       We agree that the

court’s   comments        constitute       improper        involvement       in     plea

negotiations and were a plain error, and we therefore vacate

Rankins’s guilty plea.



                                        I.

     Rankins was indicted by a federal grand jury in the Eastern

District of North Carolina on March 18, 2014, for one count of

armed bank robbery and aiding and abetting in violation of 18

                                           2
U.S.C. §§ 2113(a), 2113(d), and 2.                  Prior to being arraigned,

Rankins filed a pro se Motion to Appoint New Counsel.                          The

district court conducted a hearing on this motion on December 5,

2014.

      At the beginning of the hearing, there was confusion about

whether    Rankins       had   been   arraigned      yet;     it   was   eventually

established that he had not.                   The court then noted that the

government    had    a    strong   case,       particularly    because    Rankins’s

accomplice had agreed to testify against him, stating, “He’s

going to nail him and tell everything they did together.”                      J.A.

19.     The court said that it was “an open and shut case,” and

then remarked:

      [Rankins has] historically gone to trial every time he
      has been arrested.   That’s his MO.   So he’s probably
      not going to break that pattern. So we’ll try him in
      Elizabeth City.   You got all your people down there,
      it will take us a day or two, then he’ll get life in
      prison.

J.A. 19–20.         The court then denied Rankins’s motion for new

counsel, explaining that Rankins seemed to be in the habit of

alleging problems with his appointed counsel and would likely

reject the next attorney appointed to him as well.

      Later in the hearing, the court was trying to decide if it

should arraign Rankins that day or at a later time.                      Rankins’s

attorney requested that they wait, because he had not yet had a

chance to discuss plea options with Rankins.                   The court stated,


                                           3
“He’s taken every case that he’s ever been charged with in any

court to jury trial, and I don’t think he’s going to alter that,

but I don’t know any better.”                    J.A. 28.    The court went on to

proclaim,      “It’s    an     easy    case,”      and     then    commented        on    the

evidence the government had against Rankins, noting that there

was photographic evidence and that Rankins had been caught near

the scene of the crime with the items taken from the bank.                                J.A.

30.     Ultimately, the court decided to arraign Rankins at a later

date.       At the end of the hearing, Rankins stated again that he

did not want his appointed attorney to represent him, and said

to    the   court,     “I    don’t    want   to     plead   guilty,     as    you        know,

right.”      J.A. 34.

       An arraignment hearing was held on December 18, 2014.                             When

asked how he wanted to plead, Rankins stated that he did not

know how he was going to plead.                   Rankins explained that he and

his    attorney      disagreed       about   his     defense       strategy    and       that

therefore      they    had    not     gone   over    the    plea     matters    at       all.

Rankins stated, “I don’t know what to do.”                        J.A. 39.     He later

added, “the circumstances [are] very –- to me, very unique as to

how should I enter a guilty plea or not.”                         J.A. 41.     The court

responded by saying Rankins was intentionally frustrating the

criminal      process       and   trying     to     cause    delays.          The        court

eventually entered a plea of not guilty on behalf of Rankins.



                                             4
     On March 25, 2015, Rankins signed a plea agreement under

which he agreed to plead guilty to the indictment.       The same

day, a hearing pursuant to Rule 11 of the Federal Rules of

Criminal Procedure was conducted, at which the court established

that Rankins was competent and that he understood he was waiving

his trial rights and his rights to appeal.     Then, Rankins pled

guilty.   On July 10, 2015, Rankins was sentenced to 150 months

in prison.   On July 11, 2015, Rankins timely noted this appeal.



                                II.

     Rankins contends that his guilty plea should be vacated due

to improper judicial involvement in plea negotiations.     Rankins

raises this issue for the first time on appeal, so it will be

reviewed for plain error.    See Fed.R.Crim.P. 52(b).    There are

four elements in plain error analysis.

     First, there must be an error or defect . . . .
     Second, the legal error must be clear or obvious,
     rather than subject to reasonable dispute. Third, the
     error must have affected the appellant’s substantial
     rights, which in the ordinary case means he must
     demonstrate that it affected the outcome of the
     district court proceedings.   Fourth and finally, [the
     error should only be remedied if it] seriously
     affect[s] the fairness, integrity or public reputation
     of judicial proceedings.

Puckett v. United States, 556 U.S. 129, 135 (2009) (internal

citations and quotation marks omitted).




                                 5
                                                 A.

       Under the first two elements of the plain error analysis,

Rankins must show that the district court committed an error,

and that this error was plain.                    Rankins claims that the district

court’s     comments       during         his     December       5th   hearing      violated

Federal Rule of Criminal Procedure 11(c)(1).                           This rule states,

“An 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) (emphasis added).                         We have

explained        that    this         prohibition           serves     three       important

interests:        “[1]     it    diminishes           the    possibility      of    judicial

coercion of a guilty plea; [2] it protects against unfairness

and partiality in the judicial process; and [3] it eliminates

the misleading impression that the judge is an advocate for the

agreement    rather      than     a       neutral     arbiter.”        United      States    v.

Bradley, 455 F.3d 453, 460 (4th Cir. 2006) (internal quotation

marks omitted).

       Rankins contends that the court committed error because its

comments violated Rule 11(c)(1).                      We agree.        The court clearly

brought up the subject of plea bargaining and the likelihood of

Rankins     entering     into         a    plea       agreement.        The     court      also

commented    on    the     strength         of    the    government’s     evidence,         the

speed     with     which        Rankins          would      be   convicted,         and     the

                                                 6
inevitability of his receiving a life sentence -- all statements

likely to induce Rankins to enter into a plea agreement.                                Rule

11(c)(1)    prohibits       judicial     involvement         in    plea        discussions.

Here,     the    court    was    extensively         involving         itself     in    such

discussions.       This violates Rule 11(c)(1), and was an error.

      The government contends that Rule 11(c) does not apply in

this situation, because plea negotiations between the government

and Rankins were not ongoing when the court made the comments in

question.         This    argument      is       unavailing       --     the    fact    that

government-defendant negotiations were not already ongoing does

not     change    our    analysis.           Rule    11(c)(1)          states    that     the

government and a defendant may participate in plea discussions,

and that the court must not.                 Fed.R.Crim.P. 11(c)(1).                If the

court itself initiates plea discussions, it is clearly still

participating      in    them.     The       district   court’s          behavior       falls

squarely within the scope of Rule 11(c)(1)’s prohibition.

        Under    the    plain   error    standard,      an    error       must     also    be

“plain,” meaning that it “must be clear or obvious, rather than

subject    to    reasonable      dispute.”          Puckett,       556    U.S.     at    135.

Here, the error is plain.                The court openly brought up plea

bargaining and made a variety of harsh comments that would tend

to make Rankins more likely to plead guilty.                            This is a clear

violation of Rule 11(c)(1).



                                             7
                                               B.

       Under the third element of the plain error test, Rankins

must    show     that      the    error      affected       his     substantial          rights,

meaning that he “must show a reasonable probability that, but

for the error, the outcome of the proceeding would have been

different.”         Molina-Martinez v. United States, 136 S. Ct. 1338,

1343    (2016)      (internal       quotations       marks       omitted).          To     show   a

violation      of     substantial        rights      by     a    Rule   11     violation,         a

defendant “need only demonstrate a ‘reasonable probability’ that

he would not have pleaded guilty absent the court’s comments.”

United    States      v.     Sanya,      774    F.3d      812,    820    (4th       Cir.      2014)

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

(2004)).       In assessing a defendant’s showing, “particular facts

and circumstances matter.”                United States v. Davila, 133 S. Ct.

2139, 2149 (2013).            With that said, we have previously explained

that    “it    will     be   rare     that     a    clear       violation      of    Rule      11’s

prohibition      against         judicial      involvement        in    plea    negotiations

does not affect substantial rights.”                      Bradley, 455 F.3d at 463.

       The    government         first    argues       that       because      three       months

passed between the court’s comments and Rankins’s decision to

plea, there is not a “reasonable probability” that he would not

have pleaded guilty absent the court’s comments.                                    It is true

that,    in    the    past,      we   have     considered         the    passage         of    time

between judicial intervention and a defendant’s guilty plea to

                                                8
be     an    important      factor   in    determining         whether     the       above-

described “reasonable probability” exists.                      Sanya, 774 F.3d at

818.        In this case, however, Rankins and his attorney had major

problems         with   communication     up   until     his    decision        to    plea.

Because this may have contributed to the temporal gap in this

case,       we    decline   to   place    great    weight      on   the    three-month

passage of time.

       The       government   next   asserts      that   Rankins’s        own    comments

show that he was not swayed by the court.                       In Sanya, we noted

that the defendant’s “sudden and significant shift in attitude

. . . strongly suggest[ed] that his . . . change of heart was

the product of the district court’s urging.”                        Id.         Here, the

government argues that in the time after the court’s comments,

Rankins made statements that suggest that the comments had not

affected him.           At the end of the December 5th hearing, after the

court made the statements in question, Rankins stated that he

did not want to plead guilty.              This statement does indicate that

the comments did not immediately change Rankins’s mind.

       Then, at the December 14th hearing, Rankins stated that he

did not know how to plead and that his circumstances were “very

unique.”         J.A. 41.     The government argues that these statements

also show that the court’s comments did not have an effect on

Rankins.          However, although these statements do indicate that

Rankins still did not want to plead guilty at the December 14th

                                           9
hearing,    they      also    show     that    that       between     December       5th    and

December    14th,      Rankins       changed       from    definitively           wanting    to

plead not guilty, to feeling confused and not knowing how to

plead.     Thus, these statements can also be interpreted as a sign

that the court’s comments did have an effect on Rankins.                                     At

best,    these       two   statements         by    Rankins       are       ambiguous,      and

therefore are not particularly probative as to the effect that

the court’s comments had on him.

     Moreover,         the     decisive       factor       in      this      case     is    the

egregiousness of the court’s comments themselves.                                Common sense

dictates    that      if     the   court      emphasizes        the     strength      of    the

government’s case, and then tells a defendant that his case is

“open and shut” and that he is going to receive life in prison,

these statements are highly likely to cause the defendant to

enter    into    a    plea    agreement       to    avoid       trial.        Such    blatant

commentary      regarding      the     defendant’s         guilt      and    likelihood      of

conviction      weighs       heavily    in    favor       of   finding       a    “reasonable

probability” that the comments here caused Rankins to agree to a

plea.

     In sum, Rankins did not want to plead guilty initially, was

then exposed to highly inappropriate commentary by the court

regarding the likelihood of conviction and a life sentence, soon

after    expressed         confusion       about      what       he     should       do,    and

eventually signed a plea agreement.                    In our view, this sequence

                                              10
of events creates more than a “reasonable probability” that the

court’s     statements    led       Rankins      to     plead      guilty,      and    the

government’s       arguments    to    the      contrary       do   not    convince      us

otherwise.     The fact that Rankins did not immediately change his

mind   does   not    overcome       the   obvious      impact      that    these      harsh

statements were likely to have on someone in Rankins’s position.



                                          C.

       Finally, to prevail under the plain error standard, Rankins

must also show that the error seriously affects “the fairness,

integrity     or     public     reputation        of     judicial         proceedings.”

Puckett, 556 U.S. at 135 (internal quotation marks omitted).

This standard is undoubtedly met.                When a defendant, before he

has even been arraigned, is told by the court -- the neutral

arbiter -- that he will certainly be convicted and receive life

in prison, the fairness, integrity, and public reputation of

that proceeding are all gravely damaged.                   See Bradley, 455 F.3d

at 460-61.

       Notwithstanding        the    court’s      apparent         frustration        with

Rankins’s     conduct,   these       comments     are    astonishing        and    wholly

inappropriate.       Such behavior is antithetical to the very role

that the court is meant to serve, and does nothing but undermine

“the   fairness,     integrity       [and]     public    reputation        of    judicial

proceedings.”        Puckett,       556   U.S.   at     135     (internal       quotation

                                          11
marks omitted).    As a result, the fourth and final prong of the

standard is met.



                               III.

     The district court’s comments constitute plain error that

cannot go uncorrected.   Accordingly, the conviction below is

                                             VACATED AND REMANDED.




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