     Case: 14-50073      Document: 00513084543         Page: 1    Date Filed: 06/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50073
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 18, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JUSTIN CHRISTOPHER HOLMES,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-2032-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Justin Christopher Holmes appeals his conviction for solicitation of child
pornography, asserting that the district court violated the absolute rule
against judicial participation in plea negotiations under Federal Rule of
Criminal Procedure 11(c)(1). We review forfeited Rule 11 objections for plain
error, and the “silent defendant has the burden to satisfy the plain-error rule.”
United States v. Vonn, 535 U.S. 55, 58-59 (2002). Holmes must show a forfeited


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-50073

error that is clear or obvious that affects his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). A violation of Rule 11(c)(1) violates a
defendant’s substantial rights if the record as a whole reflects a reasonable
probability “that, but for the [district court’s] exhortations, [the defendant]
would have exercised his right to go to trial.” United States v. Davila, 133 S.
Ct. 2139, 2150 (2013). If Holmes shows a clear or obvious error that affects his
substantial rights, we have the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See Puckett, 556 U.S. at 135.
      During a pre-trial hearing on Holmes’s motion for appointment of new
counsel, the district court questioned defense counsel about whether Holmes
had seen the “sickening” evidence against him, which included images that
were “the worst that [the court had] ever seen in any child pornography case.”
The court indicated that potential jurors would view a sample of the images
during voir dire and noted it “would keep the ones that didn’t get sick.” After
reiterating that the jury pool would see the images before the trial began, the
court asked whether the Government had offered Holmes a plea deal and the
details concerning the offer. The court instructed the prosecutor to put the
parties’ tentative agreement on the record and questioned Holmes about his
interest in the plea offer. The court agreed to appoint new counsel to give
Holmes his requested “second opinion” about the case but declined to “saddle”
anyone else in the Federal Public Defender’s office with the case.
      The district court’s comments suggested that it “had a predisposition to
believe that [Holmes] was guilty” and “were akin to the court advocating . . .
that the plea was in [his] best interest.” United States v. Hemphill, 748 F.3d
666, 674-75 (5th Cir. 2014). Taken in context and read in their entirety, the
comments amounted to “participation in or interference with the plea



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                                 No. 14-50073

negotiation process” that was a clear or obvious violation of the “blanket
prohibition” of Rule 11(c)(1). See id. at 672-75.
      Although Holmes claims that he pleaded guilty because of the trial
court’s comments, he cites to nothing in the record that supports his claim. The
record reflects that he waited three months after the court’s comments to enter
his guilty plea, and he testified at his rearraignment that no one had
threatened, coerced, or intimidated him to plead guilty. Because he fails to
show a reasonable probability that he would have proceeded to trial but for the
district court’s comments, we find no plain error. See Davila, 133 S. Ct. at
2149-50; Vonn, 535 U.S. at 58-59.       The judgment of the district court is
AFFIRMED.




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