     Case: 14-40560      Document: 00513046210         Page: 1    Date Filed: 05/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                    No. 14-40560                                   FILED
                                  Summary Calendar                             May 18, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERTO CRUZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-1444


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Roberto Cruz pleaded guilty to one count of
conspiracy to take hostages, a violation of 18 U.S.C. § 1203. He was sentenced
to 360 months in prison, which is less than the advisory guideline sentence of
life. On appeal, Cruz contends that his plea was invalid because the district
court participated in plea negotiations, thereby violating Federal Rule of
Criminal Procedure 11(c)(1).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-40560     Document: 00513046210       Page: 2   Date Filed: 05/18/2015


                                   No. 14-40560

      Cruz did not raise this claim in the district court, so we review it for plain
error. See United States v. Davila, 133 S. Ct. 2139, 2147 (2013). To succeed,
Cruz must show that a forfeited error was “clear or obvious, rather than subject
to reasonable dispute,” and that the error affected his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009); see FED. R. CRIM. P. 11(h).
Even if he does so, we have the discretion to correct the error if we conclude
that it seriously affects the integrity, fairness, or public reputation of the
proceedings. Puckett, 556 U.S. at 135.
      Rule 11(c)(1) provides a “bright line rule” and “an absolute prohibition
on all forms of judicial participation in or interference with the plea negotiation
process.” United States v. Pena, 720 F.3d 561, 570 (5th Cir. 2013) (internal
quotation marks and citations omitted).        To determine whether a judge’s
participation in plea discussions affected a defendant’s substantial rights, we
consider “whether it was reasonably probable that, but for the [judge’s]
exhortations, [the defendant] would have exercised his right to go to trial.”
Davila, 133 S. Ct. at 2150. The effect of the judge’s “comments should be
assessed, not in isolation, but in light of the full record.” Id.
      Although at the start of the plea hearing Cruz said he wanted to plead
guilty, defense counsel asked the court to address some concerns that Cruz had
previously expressed to counsel. The court said, among many other things,
“[T]here are some advantages to entering a plea because most often, now
there’s no guarantee, but most often you get a somewhat lesser sentence if you
do enter a plea. No guarantee, but that’s the case.” The court went on to
explain clearly that the choice to plead was Cruz’s alone and that the actual
sentence could not yet be determined. The court later explained that Cruz
faced up to a life sentence if he pleaded guilty and that there was no assurance




                                         2
    Case: 14-40560    Document: 00513046210     Page: 3   Date Filed: 05/18/2015


                                 No. 14-40560

that Cruz would get credit for accepting responsibility because there was
already a jury waiting and ready for trial.
      Cruz has not shown that the court’s generalization about possibly lower
sentences for guilty pleas was a violation of Rule 11(c)(1) beyond “reasonable
dispute.” Puckett, 556 U.S. at 135. Moreover, even if the brief remark was a
violation of the rule, the record as a whole firmly establishes that it could not
reasonably have affected Cruz’s decision to plead guilty. See Davila, 133 S. Ct
at 2149-50. Cruz’s plea was knowing and voluntary.
AFFIRMED.




                                       3
