                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-12674                ELEVENTH CIRCUIT
                                                             APRIL 22, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                                CLERK

                 D. C. Docket No. 06-00043-CR-T-17-TGW

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MICHAEL L. CONE,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (April 22, 2009)

Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      Michael L. Cone appeals his convictions for conspiracy to violate federal

bankruptcy laws and two counts of bankruptcy fraud, in violation of 18 U.S.C.

§§ 371 and 157. On appeal, he argues that the district court violated

Fed.R.Crim.P. 11(c)(1)’s prohibition on judicial participation in plea negotiations.

For the reasons set forth below, we affirm.

                                          I.

      A federal grand jury returned a superseding indictment against Cone and two

codefendants, charging him with: conspiracy to violate federal bankruptcy laws, in

violation of 18 U.S.C. §§ 371, 152, and 157 (Count One); wire fraud affecting a

financial institution, in violation of 18 U.S.C. § 1343 (Count Two); making false

statements, in violation of 18 U.S.C. § 1001 (Count Three); and two counts of

bankruptcy fraud, in violation of 18 U.S.C. § 157 (Counts Five and Six).

      Cone and the government entered into a written plea agreement, whereby

Cone agreed to plead guilty to Counts One and Two in the indictment, and the

government agreed to dismiss the remaining counts. The plea agreement advised

Cone that the statutory maximum sentence for Count 1 was 5 years’ imprisonment,

and the statutory maximum sentence for Count 2 was 30 years’ imprisonment.

      A magistrate judge conducted a standard plea colloquy with Cone in which

the magistrate, inter alia, reviewed the terms of the plea agreement, explained the



                                          2
applicable statutory maximum penalties, and ensured that Cone was pleading

guilty voluntarily. At one point in the hearing, the magistrate indicated that he

would not accept Cone’s guilty plea on Count One because, in attempting to ensure

that there was a sufficient factual basis for the plea, Cone denied having knowledge

that his actions were illegal. Cone then reassured the magistrate that he wished to

plead guilty and Cone admitted to having knowledge of his illegal activity. Cone

ultimately pled guilty to both Counts One and Two, and the district court

subsequently accepted his plea.

      Three months later, Cone, through a new attorney, filed an “agreed motion”

to substitute his guilty plea on Count Two for the entry of a guilty plea on Counts

Five and Six. Defense counsel explained that he was not satisfied that there was a

sufficient factual basis establishing the “affecting a financial institution” element in

Count Two or that Cone was aware of this element at the time he entered his guilty

plea. Although the government disagreed on that point, counsel explained that the

government had nonetheless agreed to resolve the issue by having Cone “enter

guilty pleas to Counts Five and Six . . . in return for the Government’s agreement

to dismiss Count Two.” Cone simultaneously filed a “motion to modify or

withdraw” his guilty plea to Count Two. However, defense counsel subsequently

clarified that this was not an independent motion, but was rather intended as an



                                            3
exhibit “so that the Court could see what the basis was for the agreement.”

       The court held a status hearing, at which time the parties confirmed the

terms of the proposed plea agreement. The government also noted that “under the

new plea agreement that’s proposed by the parties, [Cone’s] base offense level

would start off as six instead of seven.”1 Cone informed the court that he had

discussed the proposed agreement with his attorney and wished to proceed under

that agreement.

       The government then filed an Addendum to the original plea agreement,

describing the terms of the proposed agreement and clarifying that the Addendum

did not otherwise affect the terms of the original plea agreement. In addition to

setting out the elements of the offense in Counts Five and Six and the statutory

maximum penalties, the government described the factual basis supporting those

two counts.

       The district court held a plea hearing and first recognized that Cone’s

attorney had filed a motion to withdraw. Counsel recognized that his motion was

“vague,” but thought it would become clear as the hearing proceeded. The district

       1
          Cone’s base offense level would have been 7 in connection with Count 2 because the
statutory maximum penalty for that offense was in excess of 20 years’ imprisonment. U.S.S.G.
§ 2B1.1(a)(1); see 18 U.S.C. § 1343 (providing for a statutory maximum penalty of 30 years’
imprisonment). However, Cone’s base offense level would have been 6 in connection with Counts
5 and 6 because the statutory maximum penalty was less than 20 years’ imprisonment. U.S.S.G.
§ 2B1.1(a)(2); see 18 U.S.C. § 157 (providing for a statutory maximum penalty of 5 years’
imprisonment).

                                             4
court began by twice asking Cone whether he in fact wished to plead guilty to

Counts Five and Six in exchange for withdrawing his guilty plea to Count Two,

and Cone responded affirmatively. Cone then explained that the “process ha[d]

bogged down a little bit” because some of the facts in the government’s Addendum

were not accurate, and Cone wanted to make sure that they were correct. The court

responded:

       Well, now, just understand, I don’t really care. If it got down to nuts
       and bolts, I’m not sure I’d let you withdraw your plea to Count Two.
       The only reason I’m doing it is because both sides have agreed to it.

       It was a late motion to withdraw the plea. I’m not sure that I would
       allow the plea to be withdrawn if it wasn’t agreed to. So don’t mess
       with me this morning. Do you understand?

       You – you – you proceeded in this manner throughout this entire
       litigation. You did this in front of [the magistrate], there was a
       problem, and I’ve read the transcript so, you know, this is – this is the
       – this is the time.

       If we’re going to do this, we do it this morning. If not, then there –
       I’m going to – no withdrawing of the plea, is that clear?

The government explained that it had met with defense counsel the previous day

regarding “Cone’s apprehensions on some of the facts” and, based on that

discussion, it was unclear to the government whether Cone would admit to facts

sufficient to support a guilty plea. The court decided that it would “go through the

plea colloquy as to Five and Six. If that is sufficient, then I will take up the motion



                                           5
to withdraw the plea to Count Two. If it’s not successful, then we’re back to where

we were.” At that point, Cone asked for a five-minute recess, and the court

responded:

      Okay. I have a trial at – I have a trial at 9:30, okay? So I had allotted
      an hour for this. And I will give you [approximately 15 minutes].
      And then you come back in, and if you feel you can’t proceed with
      this, then that’s fine, I’ll proceed with the sentencing on Counts One
      and Two on the date in question.

When the hearing reconvened, the court asked Cone how he wished to proceed, as

it did not “want to take a lot of time going through a plea colloquy if in the end you

have no intentions of admitting to the necessary facts to support the plea.” Cone

responded:

      Your Honor, what I’d like to do is accept responsibility for, uh,
      Counts No. Five and Counts No. Six. And I’d like to, uh, agree to the
      overt acts that were included with in the, uh – within the Indictment,
      specifically as it relates to Counts No. Five and Six. And I’d like to
      accept responsibility and – and ask that the plea be changed from
      Count Two to Counts No. Five and No. Six.

      The court then asked Cone to explain his concerns about the factual basis for

Counts Five and Six, and Cone responded by disputing several of the facts in the

government’s Addendum. The court then stated: “Okay. Well, I’m not going to

proceed with the – the plea to Counts Five and Six. And we’ll just stay where we

are. You pled guilty to Counts One and Two . . . [and] the sentencing is set for

March.” The following colloquy ensued:

                                           6
      CONE:       [T]here are some overt acts that relate to Five and Six
                  that – that I don’t have issues with. And it’s just that . . .
                  I didn’t want to . . . execute this if it doesn’t appear that .
                  . . is factually correct. I didn’t want to . . . get myself in
                  some sort of trouble.

      COURT:      Okay.

                  Well, I will tell you that I’ve set this off for a number of
                  days, first, so that we wouldn’t be in this position when
                  we got here this morning and the issues could be worked
                  out.

                  ...

                  I’ll rule on the motion [filed by counsel] that I have
                  which I have not ruled on. I’m not going to proceed with
                  the plea. It doesn’t seem to me that you are accepting
                  responsibility to the facts in the . . . factual basis of
                  the . . . amendment to the plea agreement.

      CONE:       Your Honor –

      COURT:      You know, I – that’s fine. I don’t really care.

      CONE:       Your Honor, may I – I want to accept responsibility.
                  There’s issues in the overt acts that I – I completely claim
                  responsibility for. May I ask that I have 24 hours to
                  submit my overt acts?

      COURT:      No, I’m not doing that.

      The court then discussed defense counsel’s motion to withdraw, the basis of

which had become clear, and defense counsel acknowledged that he had received

the government’s Addendum several weeks earlier. When asked to respond to



                                          7
counsel’s motion to withdraw, Cone complimented his attorney and then stated:

      And, you know, I’d certainly like to – and I think what [counsel’s]
      position is is that we made a commitment to go to Five and Six
      instead of Two. And I’d like to see us fulfill that commitment. But at
      the same time I don’t want to put my name on something that I know
      is – by a word or two is off changes the meaning.

After the court suggested continuing the hearing until the following morning, the

government responded that Cone was not disputing one or two words in the

government’s factual proffer, but was rather making “flat out bold assertions”

which were “completely contrary to the evidence we have, and I would see no need

to try to reset this because candidly we wouldn’t accept any plea [where] he would

be failing to acknowledge, uh, the truth of it. . . . So I just don’t think he’s capable

of admitting and accepting his guilt.” Though the court expressed “great

trepidation . . . as to whether it [would] do any good,” it reset the hearing for the

following morning at Cone’s request.

      At the plea hearing the following morning, Cone reiterated his desire to

plead guilty to Counts Five and Six and withdraw his guilty plea to Count Two in

return. The court reminded Cone that the prior plea hearing had broken down

because of his inability to admit some of the facts in the Addendum, and Cone

informed the court that, after speaking to his attorney, that no longer posed a

problem. The court then conducted a full, standard plea colloquy with Cone, at the



                                            8
end of which Cone pled guilty to Counts Five and Six. The government then set

out the factual basis for Counts Five and Six, and the court asked whether Cone

had any objections, at which point Cone again disputed many of the details

included in the government’s factual proffer. However, after several back-and-

forth discussions with the court, Cone ultimately acknowledged acting with illegal

intent with respect to certain incidents. At that point, the court stated:

      All right.

      Mr. Cone, I’m going to accept the plea. I’ll accept the plea to both
      Count Five and Count Six. You know, I – I think that you have
      continually attempted throughout the plea process to undermine your
      responsibility here, and all along I think it’s been somewhat difficult
      for you to accept responsibility.

      But you have accepted, I think, sufficient facts to substantiate a factual
      basis for a plea to Counts Five and Six. So I will – I will accept the
      plea. I find that you are competent to enter the plea, and find there is
      a factual basis for the pleas.

The court subsequently sentenced Cone to 60 months’ imprisonment on Counts 1,

5, and 6, to run consecutively, and it dismissed Counts 2 and 3. This appeal

followed.

                                           II.

      Rule 11(c)(1) provides in pertinent part: “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

                                            9
discussions.” Fed.R.Crim.P. 11(c)(1) (emphasis added). “The primary purpose of

[this rule] is to avoid the danger of an involuntary guilty plea coerced by judicial

intervention.” United States v. Diaz, 138 F.3d 1359, 1363 (11th Cir. 1998). “We

have interpreted [this rule] as a bright line rule prohibiting the participation of the

judge in plea negotiations under any circumstances; it is a rule that . . . admits of no

exceptions.” United States v. Johnson, 89 F.3d 778, 783 (11th Cir. 1996)

(quotations and alteration omitted).

      Cone did not object on this ground below, and thus, we review this issue for

plain error. See United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003)

(“When a defendant . . . fails to object to a Rule 11 violation in the district court,

this Court reviews under the plain-error analysis.”). 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.” United States v. Corbitt, 996 F.2d 1132, 1135 (11th Cir. 1993).

                                           III.

      On appeal, Cone argues that the district court, at the first plea hearing,

“intimidated him into pleading guilty by threatening to deny his motion to

withdraw his guilty plea to Count Two unless he pled guilty to Counts Five and

Six.” The premise of Cone’s argument is disingenuous because he did not file an



                                           10
independent motion to withdraw his guilty plea on Count Two. Instead, Cone

entered into an agreement with the government whereby he would plead guilty to

Counts Five and Six and, in exchange, the government would allow him to

withdraw his guilty plea on Count Two. This proposed plea agreement was the

only basis upon which Cone sought to withdraw his guilty plea on Count Two.

Thus, the only reason why the court indicated at the initial plea hearing that it

would not allow Cone to withdraw his guilty plea on Count Two was because it

anticipated – correctly – that Cone would contest the government’s factual proffer

supporting Counts Five and Six. In other words, the court simply recognized that

if it declined to accept Cone’s attempt to plead guilty to Counts Five and Six, then

there would be no basis to allow him to withdraw his guilty plea on Count Two.

      Furthermore, nothing in the record otherwise supports Cone’s assertion that

the court impermissibly participated in plea negotiations. First, it is doubtful that

Cone may invoke Rule 11(c)(1) because he and the government had already

executed the proposed plea agreement. See United States v. Telemaque, 244 F.3d

1247, 1249 (11th Cir. 2001) (“[T]he written plea agreement was already executed.

No case that Telemaque cites, or that we have located, holds that a court’s

post-agreement remark can violate the Rule.”); Diaz, 138 F.3d at 1363 (“The

district court’s role under Rule 11 is to evaluate a plea agreement once it has been



                                           11
reached by the parties and disclosed in open court. Prior to that time, a court

should not offer comments touching upon proposed or possible plea

agreements . . . .”) (citation omitted).

         This fact further highlights that the district court in this case did nothing

more than fulfill its obligation under Rule 11 to ensure that there was a sufficient

factual basis to support Cone’s proposed guilty plea on Counts Five and Six.

See Fed.R.Crim.P. 11(b)(3) (“Before entering judgment on a guilty plea, the court

must determine that there is a factual basis for the plea.”); Johnson, 89 F.3d at 783

(stating that the court did not impermissibly participate in plea negotiations where

it “went to some lengths” to ensure, inter alia, that there was a factual basis for the

plea).

         Furthermore, this case is distinguishable from our other cases in this area, as

Cone was not confronted with the weighty decision of whether to proceed to trial.

See, e.g., United States v. Casallas, 59 F.3d 1173, 1177-78 (11th Cir. 1995)

(holding that there was a violation of the prohibition on judicial participation in

plea negotiations where the court contrasted the 15-year sentence that the

defendant would face if he went to trial with the 10-year he would face if he pled

guilty); Corbitt, 996 F.2d at 1133-35 (same, where the court told the defendants

that if they went to trial and were convicted, they would receive a “fairly high”



                                              12
sentence). Instead, Cone was merely attempting to substitute his guilty plea on

Count Two for a guilty plea on Counts Five and Six.

       In addition, this proposed substitution was, by all accounts, a favorable one

for Cone, as it reduced the statutory maximum penalty from 30 to 5 years’

imprisonment and provided a 1-level reduction in his base offense level. Cone

presumably recognized this benefit, as he repeatedly expressed a persistent and

unequivocal desire – at the status hearing and throughout both the first and second

plea hearings – to plead guilty to Counts Five and Six; there is simply nothing in

the record to support Cone’s assertion that he ever “wavered” in this regard.2

       While the fact that the proposed plea agreement was favorable to Cone could

have led the district court, as in Casallas and Corbitt, to encourage Cone to plead

guilty to Counts Five and Six, the court, contrary to Cone’s assertion, made no

mention of this benefit at either of the plea hearings. See Johnson, 89 F.3d at 783

(“The statements made by the district court here did not touch on the sentence

Johnson might receive . . . .”). To the contrary, rather than encouraging Cone to

plead guilty to Counts Five and Six, the court did precisely the opposite, resolutely

refusing to accept Cone’s plea until he sufficiently accepted the government’s


       2
          Cone’s refusal to accept the government’s factual proffer for Counts Five and Six is not
inconsistent with his unequivocal desire to plead guilty; rather, Cone made clear that he felt
compelled to dispute the government’s factual proffer because he did not want to put his name on
something that was inaccurate and risk getting himself into trouble.

                                               13
factual proffer. Under these circumstances, it is difficult to see how the district

court could fairly be accused of coercing Cone to plead guilty to Counts Five and

Six. Accordingly, we affirm Cone’s convictions.

      AFFIRMED.




                                           14
