           Case: 10-15310   Date Filed: 04/15/2014   Page: 1 of 35


                                                                     [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                        Nos. 10-15310 & 11-10224
                       ________________________

               D.C. Docket No. 1:09-cr-00060-JRH-WLB-1

UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                  versus

ANTHONY DAVILA,

                                                         Defendant - Appellant.
                       ________________________

               Appeals from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                             (April 15, 2014)

         On Remand from the Supreme Court of the United States

Before TJOFLAT, PRYOR, and KRAVITCH, Circuit Judges.


PER CURIAM:
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       In United States v. Davila, 664 F.3d 1355 (11th Cir. 2011) (“Davila I”),

Anthony Davila argued—for the first time on appeal—that a Magistrate Judge’s

comments during a pre-plea hearing constituted improper judicial participation in

plea discussions in violation of Federal Rule of Criminal Procedure 11(c)(1). 1

Davila I, 664 F.3d at 1357–58. Pursuant to circuit precedent mandating automatic

vacatur in such a situation, we vacated Davila’s conviction and remanded the case

to the District Court. Id. at 1359. The Supreme Court granted certiorari and

reversed, holding that judicial participation in plea discussions does not in itself

demand automatic vacatur. United States v. Davila, ___ U.S. ___, 133 S. Ct. 2139,

2150, 186 L. Ed. 2d 139 (2013) (“Davila II”).

       The Court vacated our judgment and remanded, directing us to determine,

“in light of the full record,” whether Davila was prejudiced by the Magistrate

Judge’s comments, and to consider whether “the extraordinary circumstances

[Davila’s] case presents should allow his claim to be judged under the harmless-

error standard of Rule 52(a) rather than the plain-error standard of Rule 52(b), the

rule that ordinarily attends a defendant’s failure to object [in the district court] to a

Rule 11 violation.” Id. We hold that plain-error review applies. Because Davila



       1
         Federal Rule of Criminal Procedure 11(c)(1) provides, in relevant part, that “[a]n
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.”

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has not demonstrated a reasonable probability that, but for the Magistrate Judge’s

comments, he would have exercised his right to trial, we affirm Davila’s

conviction.

                                          I.

      In May 2009, a federal grand jury in the Southern District of Georgia

indicted Davila on thirty-four counts, charging the following offenses: (1) in count

one, conspiracy to defraud the United States in violation of 18 U.S.C. § 286; (2) in

counts two through twelve, making and presenting false claims to the Internal

Revenue Service in violation of 18 U.S.C. § 287; (3) in counts thirteen through

twenty-three, mail fraud in violation of 18 U.S.C. § 1341; and (4) in counts twenty-

four through thirty-four, aggravated identity theft in violation of 18 U.S.C.

§ 1028A. In brief, the indictment alleged that Davila caused more than 120 false

income tax returns in other individuals’ names to be filed with the Internal

Revenue Service, and that Davila collected more than $423,000 as a result of these

returns.

      On May 20, 2009, Davila was arrested in Tampa, Florida. Davila made his

initial appearance before a Magistrate Judge in the United States District Court for

the Middle District of Florida, represented by appointed counsel Adam B. Allen of

the Federal Public Defender’s Office. Davila was detained and then transferred,

pursuant to Federal Rule of Criminal Procedure 5(c)(2)–(3), to the Southern
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District of Georgia, and placed in the McDuffie County Jail in Thomson, Georgia.2

Michael N. Loebl of Fulcher Hagler, LLP was appointed to represent him.

       At his arraignment before a Magistrate Judge on June 1, 2009, Davila pled

not guilty to all charges. Then, at a detention hearing on June 9, 2009, the

Magistrate Judge denied Davila bond, noting that Davila was “the poster child for

detention.” Record, no. 50, at 73:1. The Augusta Chronicle reported that, after the

hearing, the Magistrate Judge spoke with the press, telling the Chronicle that the

reasons to detain Davila were “extensive.” Record, no. 41, at 4 (quoting Sandy

Hodson, Judge denies bond in prison identity theft scam, Augusta Chron., June 10,

2009, http://chronicle.augusta.com/stories/2009/06/10/met_527113.shtml). The

Chronicle also noted that the Magistrate Judge had dubbed Davila “the poster child

for detention.” Id. (quoting Hodson, supra).

       At some point—the record is unclear as to precisely when—Loebl received a

Pretrial Services Report prepared prior to Davila’s transfer to the Southern District




       2
          Under Federal Rule of Criminal Procedure 5(c)(2), “[i]f the defendant was arrested in a
district other than where the offense was allegedly committed, the initial appearance must be:
(A) in the district of arrest; or (B) in an adjacent district if: (i) the appearance can occur more
promptly there; or (ii) the offense was allegedly committed there and the initial appearance will
occur on the day of arrest.” Then, “the magistrate judge must transfer the defendant to the
district where the offense was allegedly committed if: (i) the government produces the warrant, a
certified copy of the warrant, or a reliable electronic form of either; and (ii) the judge finds that
the defendant is the same person named in the indictment, information, or warrant.” Fed. R.
Crim. P. 5(c)(3)(D).

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of Georgia. The Report indicated that Davila had been treated in the past for

schizophrenia. Then, on July 7, 2009, Loebl received a proposed plea agreement

from the Government and forwarded it to Davila at the jail. Under the terms of the

agreement, Davila would plead guilty to sixteen of the thirty-four counts. On

August 13, 2009, Loebl met with Davila but discussed the plea offer only in

“general terms” and did not discuss the proposed “plea agreement or all of its

terms and their consequences in detail.” Record, no. 35, at 1–2. On August 21,

2009, Loebl again met with Davila. At the outset of the meeting, Davila informed

Loebl that the dosage of his antipsychotic medication had recently been

significantly increased. Davila provided Loebl with a copy of the plea agreement

Loebl had sent him, which Davila had signed, but not dated.3 However, Davila

“stated in no uncertain terms that he was not capable of reviewing it or

comprehending any explanation of it at that time.” Id. at 2.

       That same day, on August 21, 2009, Loebl moved the District Court to enter

an order requiring Davila to submit to a competency evaluation. In his motion,

Loebl explained that he had a plea agreement executed by Davila. However, Loebl

indicated that he had “weighty concerns” about the circumstances under which the



       3
         The record is somewhat unclear as to when, precisely, Davila provided Loebl with the
signed plea agreement, but it appears that it was at their meeting on August 21, 2009. See
Record, no. 35, at 2.

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agreement had been executed, due to Davila’s apparent mental condition and

because Loebl had been unable to review the agreement “provision-by-provision,

page-by-page” with Davila. Id. Thus, Loebl submitted, while the District Court

could conceivably “evaluate . . . Davila’s mental competency as a threshold matter

in any change-of-plea hearing, . . . the integrity of the judicial system would be

best served by a competency evaluation prior to any further proceedings.” Id. The

Government responded the same day, offering no objection.

       On September 1, 2009, the District Court ordered an examination as to

Davila’s competency to stand trial 4 and as to his mental state at the time of the

alleged offenses. Davila was transported for evaluation to the Federal Correctional

Institute in Fort Worth, Texas. On January 11, 2010, a psychiatric report issued,

indicating that Davila suffered from schizoaffective disorder, which was controlled

by medication, and that he was competent to stand trial. The report noted that

Davila “was aware of the concept of a plea agreement, [but] . . . was somewhat

insistent that he would not consider a plea offer,” as he stated during his evaluation

that he did not commit the charged crimes and “want[ed] [his] day in court.”



       4
         “A defendant may not be put to trial unless he ‘has sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as
factual understanding of the proceedings against him.’” Cooper v. Oklahoma, 517 U.S. 348,
354, 116 S. Ct. 1373, 1377, 134 L. Ed. 2d 498 (1996) (quoting Dusky v. United States, 362 U.S.
402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per curiam)) (alterations in original).

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Record, no. 38, at 8. The report also indicated that Davila was dissatisfied with

Loebl because all Loebl “seems to care about is the most effective plea bargain so

that he doesn’t have to go to trial.” Id. at 9. Then, on January 27, 2010, a

competency hearing before the Magistrate Judge was set for February 23, 2010.

      On the same day, January 27, 2010, and shortly after his return to the

Southern District of Georgia, Davila wrote a letter from the McDuffie County Jail

to the presiding District Judge, expressing displeasure with Loebl and requesting

replacement counsel. In particular, Davila complained that Loebl was allegedly

unqualified to try a federal criminal case, that he had failed to adequately consult

with Davila, had not forwarded any discovery to him, had not obtained relevant

information that would assist in preparation of his case, had not kept him apprised

of the preparation of his defense, and had not investigated a certain Government

witness. Davila also complained that Loebl offered him no defensive strategy

other than to plead guilty, and—as we construe Davila’s letter—had raised the

question of Davila’s competence despite Davila’s apparent unwillingness to do so.

Concluding the letter, Davila requested a hearing and, ultimately, removal of Loebl

from the case and appointment of replacement counsel. The District Judge referred

the letter to the Magistrate Judge.

      On February 8, 2010, while the competency hearing was pending, the

Magistrate Judge conducted an in camera hearing with Davila and Loebl to address
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Davila’s complaints. Government counsel was excused. The Magistrate Judge

began by explaining to Davila that Loebl was well-qualified to try Davila’s case,

and that furthermore, the Magistrate Judge felt that Davila was “lucky” to have

drawn Loebl from the pool because Loebl had previously served very competently

as the Magistrate Judge’s law clerk, noting that Loebl was “one of the finest law

clerks [he] had ever had.” Record, no. 127, at 3:25–4:11. The Magistrate Judge

then explained that Davila was free to represent himself, but that the court would

not appoint another attorney.

      At this point, Davila presented a pro se motion to recuse the Magistrate

Judge, based on the statements the Magistrate Judge had made to the press after the

June 9, 2009, detention hearing that put forth Davila as the “poster child for

detention.” Record, no. 41, at 1. In his pro se motion, Davila alleged that these

statements demonstrated the Magistrate Judge’s bias. The Magistrate Judge denied

the motion without comment.

      With regard to Davila’s mental condition, the Magistrate Judge told Davila,

“[t]he question about this schizoaffective disorder . . . is this, you are an articulate

great writer. You put together some very . . . precise arguments about various

things which indicates to me that you are not incompetent. Clearly you are

competent.” Record, no. 127, at 7:17–21.


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       Turning to Davila’s complaint that Loebl had presented him with no

defensive strategy other than to advise him to plead guilty, the Magistrate Judge

told Davila:

       Well, you know, oftentimes, Mr. Davila, that is the best advice a
       lawyer can give his client. In view of whatever the Government’s
       evidence in a case might be, it might be a good idea for the Defendant
       to accept responsibility for his criminal conduct to plead guilty and go
       to sentencing with the best arguments on your behalf still available for
       not wasting the Court’s time, not causing the Government to have to
       spend a bunch of money empanelling a jury to try an open and shut
       case.

Id. at 8:17–25.

       Davila expressed concern that Loebl (according to Davila) continued to

recommend a plea of guilty notwithstanding the Government’s refusal to commit

to recommending a downward departure from the Guidelines sentence range based

on Davila’s cooperation.5 Davila reiterated that Loebl should have given him

“options” and that not one letter he had received from Loebl “talked[ed] about a

viable defense at all except for pleading guilty.” Id. at 10:11–13, 11:19–22.

       The Magistrate Judge responded that “there may not be a viable defense to

these charges.” Id. at 11:23–24. The Magistrate Judge then urged Davila to



       5
         Under § 5K1.1 of the U.S. Sentencing Guidelines Manual, “[u]pon motion of the
government stating that the defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense,” the district court may grant a
downward departure from the Guidelines sentence.

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cooperate, intimating that, given Davila’s criminal history, it would be in his best

interest to plead guilty in order to obtain a downward departure from the sentence

range indicated by the Sentencing Guidelines. The Magistrate Judge explained to

Davila:

      [T]he Government, they have all of the marbles in this situation and
      they can file that [U.S. Guidelines Sentencing Manual §] 5K1.1
      motion for [a] downward departure from the guidelines if they want
      to, you know, and the rules are constructed so that nobody can force
      them to file that 5K1.1 [motion] for you. The only thing at your
      disposal that is entirely up to you is the two or three level reduction
      for acceptance of responsibility. That means you’ve got to go to the
      cross. You’ve got to tell the probation officer everything you did in
      this case regardless of how bad it makes you appear to be because that
      is the way you get that three-level reduction for acceptance, and
      believe me, Mr. Davila, someone with your criminal history needs a
      three-level reduction for acceptance. . . . You’re the only person that
      has that key, but make no mistake about it, that two- or three-level
      reduction for acceptance is something that you have the key to and
      you can ensure that you get that reduction in sentence simply by virtue
      of being forthcoming and not trying to make yourself look like you
      really didn’t know what was going on. In order to get the reduction
      for acceptance, you’ve got to come to the cross. You’ve got to go
      there and you’ve got to tell it all, Brother, and convince that probation
      officer that you are being as open and honest with him as you can
      possibly be because then he will go to the district judge and he will
      say, you know, that Davila guy, he’s got a long criminal history but
      when we were in there talking about this case he gave it all up so give
      him the two-level, give him the three-level reduction.

Id. at 15:23–17:13. Neither Davila nor Loebl objected to the Magistrate Judge’s

urgings.



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      On February 23, 2010, the Magistrate Judge conducted the previously

scheduled competency hearing. At the hearing, the psychologist that had examined

Davila at the Federal Correctional Institute testified that the symptoms of Davila’s

schizoaffective disorder were adequately controlled by his medication. The

psychologist further testified that Davila appeared unwilling to assist Loebl, but

that this was caused by his dissatisfaction with Loebl, and not by his mental illness.

The Magistrate Judge then questioned Davila under oath, who explained that a

recent change in the dosage of his medication “threw [him] off of whack,” but that

so long as his medication is administered correctly in the future, “there is no

problem of competency.” Record, no. 128, at 50:16–51:24.

      On March 4, 2010, the Magistrate Judge issued a report and

recommendation that Davila be found competent. The following day, on March 5,

Loebl demanded a speedy trial. Then, on March 23, 2010, the District Court

issued an order finding Davila competent to stand trial. On March 25, the court set

a trial date for April 19, 2010. On March 29, the Government moved to continue

the trial, noting in the motion that plea discussions were ongoing. On April 2, the

court granted the motion for continuance.

      On May 17, 2010, Davila entered a guilty plea before the District Judge,

pursuant to a plea agreement under which Davila would plead to the count one

conspiracy charge in exchange for the Government’s agreement to dismiss the
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remaining thirty-three counts and recommendation of a three-level Sentencing

Guidelines reduction for acceptance of responsibility. At the change-of-plea

hearing, the court conducted an “exemplary Rule 11 colloquy.” Davila II, 133 S.

Ct. at 2142. Under oath, Davila stated that he had not been forced or pressured to

plead guilty. Davila also admitted that his conduct would satisfy the elements of

conspiracy, notwithstanding some purported “inaccuracies” Davila pointed to in

the “details” of the indictment. Record, no. 121, at 15:10-19:9. The District Court

then accepted Davila’s plea. Nothing in the record indicates that, at the time of the

hearing, the District Judge was aware of the February 8, 2010, hearing before the

Magistrate Judge or of his comments regarding the desirability of a guilty plea, and

neither Loebl nor Davila mentioned those comments.

      Following his plea, Davila continued to express to the court his

dissatisfaction with Loebl. On July 27, 2010, Davila filed a motion to terminate

counsel; he would represent himself. At an ex parte hearing on August 3, 2010,

before the Magistrate Judge to address the motion, Davila expressed discontent

with the guilty plea’s factual basis, and, specifically, the commencement date of

the conspiracy alleged in the indictment. Davila complained that Loebl had not

properly addressed the matter prior to the plea change hearing. The Magistrate

Judge announced that he was continuing the ex parte hearing until the Presentence

Investigation Report (the “PSI”) had been completed.
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      After the Magistrate Judge and the parties received the initial draft of the

PSI, the Magistrate Judge reconvened the ex parte hearing on September 13, 2010.

The Magistrate Judge placed Davila under oath and asked him a series of questions

in order to ensure that Davila’s waiver of counsel was knowing and intelligent.

See generally Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L.

Ed. 2d 562 (1975) (holding that a criminal defendant has the right to self-

representation, but “must ‘knowingly and intelligently’ forgo” the benefits of

counsel). The Magistrate Judge found that Davila had knowingly waived his right

to counsel, but, over Davila’s objection, required Loebl to serve as standby

counsel. See generally id. at 834 n.46, 95 S. Ct. at 2541 n.46 (“[A] State may—

even over objection by the accused—appoint a ‘standby counsel’ to aid the

accused if and when the accused requests help, and to be available to represent the

accused in the event that termination of the defendant’s self-representation is

necessary.”). On September 14, 2010, the Magistrate Judge issued an ex parte

order holding Davila’s waiver of counsel valid, granting Davila’s motion to

terminate Loebl, and appointing Loebl as standby counsel.

      On September 15, 2010, Davila filed a pro se motion to vacate his guilty

plea and dismiss the indictment. Davila contended that a Government witness had

deliberately misrepresented the time frame of the conspiracy to the grand jury.

Davila claimed that the purpose of his plea was “strategic.” Record, no. 79, at 35.
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The Government filed a response on September 22, 2010, arguing that Davila’s

guilty plea waived all factual disputes. Davila then filed a reply to the

Government’s response on September 28, 2010, an objection to the PSI on October

14, 2010, an addendum to his pro se motion to vacate his guilty plea and dismiss

the indictment on October 26, 2010, and a motion for a hearing on November 2,

2010.

        On November 15, 2010, the District Court conducted a hearing on Davila’s

pro se motion to vacate his guilty plea and dismiss the indictment. 6 At the hearing,

Davila explained his “strategic decision” to plead guilty: because he was aware

that the prosecutor had a duty to disclose all information relevant to the court’s

decision whether to accept the plea, Davila’s purported purpose in entering the plea

was to force the Government to acknowledge time frame errors made in the

indictment and that the basis for the guilty plea was thus flawed, and thereby

demonstrate to the court that the prosecution was “vindictive.” Record, no. 122, at

5:7–6:9. Davila also indicated that he felt he “had no choice” but to plead. Id. at

7:25–8:1.




        6
         Loebl was present at the hearing, but assisted—at Davila’s request—only with the
sentencing portion.

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      Again, neither Loebl, Davila, nor the court mentioned the Magistrate Judge’s

comments regarding the desirability of a guilty plea. The court observed that, at

the change-of-plea hearing, Davila had affirmed that he was under no “pressure,

threats, or promises, other than the promises [made] by the government in the plea

agreement.” Id. at 17:19–21. The court further noted that Davila had been fully

advised of his rights and the consequences of his plea. Thus, the court held that

Davila’s plea was knowing and voluntary, and denied Davila’s motion. The court

then sentenced Davila to a prison term of 115 months.

      Davila promptly appealed his conviction and sentence, which led to our

decision in Davila I, 664 F.3d 1355. On November 15, 2010, before we had

appointed Loebl as Davila’s appellate counsel, Davila filed a motion with the

District Court to appoint substitute counsel on appeal. On November 29, 2010, we

appointed Loebl to represent Davila on appeal. Then, on November 30, 2010,

Loebl filed a motion with the District Court to withdraw as counsel. The District

Court denied both Davila’s motion to appoint substitute appellate counsel and

Loebl’s motion to withdraw. On December 17, 2010, Davila filed a motion for

reconsideration of the District Court’s orders, which the Court denied.




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       On March 22, 2011, Loebl sought our leave to withdraw, supported by an

Anders brief asserting that there were no issues of arguable merit to be raised on

Davila’s behalf.7 In a perfunctory order, we denied Loebl’s motion to withdraw.

       In response to our order, Loebl filed a brief arguing that Davila’s plea should

be vacated because the Magistrate Judge’s comments regarding the desirability of a

guilty plea during the hearing on February 8, 2010, constituted a violation of

Federal Rule of Criminal Procedure 11(c)(1). Pursuant to circuit precedent

mandating automatic vacatur in case of judicial participation in plea negotiations,

we vacated Davila’s plea and conviction, and remanded the case to the District

Court. Davila I, 664 F.3d at 1358–59.8




       7
         If an attorney finds, after a “conscientious examination” of the record on appeal, that his
or her case is “wholly frivolous,” he or she may request permission to withdraw. Anders v. State
of California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). “That request
must, however, be accompanied by a brief referring to anything in the record that might arguably
support the appeal.” Id. This brief is referred to as an Anders brief. If, after a plenary review of
the record, the court determines that the case is wholly frivolous, “it may grant counsel’s request
to withdraw and dismiss the appeal.” Id. “On the other hand, if it finds any of the legal points
arguable on their merits (and therefore not frivolous) it must, prior to decision, afford [an]
indigent the assistance of counsel to argue the appeal.” Id.
       8
          Under our now-abrogated automatic vacatur rule, we treated Rule 11(c)(1) as a “bright
line rule,” holding that:
       Rule 11(c)(1) . . . prohibits “the participation of the judge in plea negotiations
       under any circumstances . . . [and] admits of no exceptions.” United States v.
       Johnson, 89 F.3d 778, 783 (11th Cir. 1996) (quotation omitted). Thus, “[j]udicial
       participation is plain error, and the defendant need not show actual prejudice.”
       United States v. Corbitt, 996 F.2d 1132, 1135 (11th Cir. 1993).
Davila I, 664 F.3d at 1358 (emphasis omitted).

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       The Supreme Court granted certiorari, held that our automatic vacatur rule is

incompatible with Federal Rule of Criminal Procedure 11(h), 9 vacated our

judgment, and remanded, directing us to consider, “in light of the full record,”

whether Davila was prejudiced by the Magistrate Judge’s comments, and whether

“the extraordinary circumstances [Davila’s] case presents should allow his claim to

be judged under the harmless-error standard of Rule 52(a) rather than the plain-

error standard of Rule 52(b), the rule that ordinarily attends a defendant’s failure to

object [in the district court] to a Rule 11 violation.” Davila II, 133 S. Ct. at 2149–

50. Following the Court’s mandate, we asked the parties for new briefs in light of

the Court’s decision.

       Davila now argues that, because he had no meaningful opportunity to make

a contemporaneous objection due to the circumstances of his case, harmless-error

review should apply, and that the Government has failed, under that standard, to

show that he was not prejudiced by the Rule 11 error. Davila further argues that

even if plain-error review applies, the record demonstrates that it is reasonably

probable that he would not have changed his plea to guilty but for the Magistrate



       9
         Federal Rule of Criminal Procedure 11(h) provides that “[a] variance from the
requirements of this rule is harmless error if it does not affect substantial rights.” The Supreme
Court noted that Rule 11(h) was “specifically designed to stop automatic vacaturs, [and] calls for
across-the-board application of the harmless-error prescription (or, absent prompt objection, the
plain-error rule).” Davila II, 133 S. Ct. at 2149.

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Judge’s comments regarding the desirability of pleading, thus demonstrating that

Davila suffered prejudice. Therefore, under either standard, Davila contends that

his conviction and plea must be vacated.

      The Government argues that plain-error review applies because Davila

abandoned any argument for harmless-error review, and that plain-error review is

required regardless because the contemporaneous objection rule is applicable even

where, as here, counsel may be unmotivated to object—and in any case Davila had

an opportunity to personally object during the months he represented himself pro

se. The Government further argues that, under plain-error review, Davila failed to

show that he was prejudiced by the Rule 11 error, as demonstrated by portions of

the record which purportedly indicate that the Magistrate Judge’s comments had no

effect on Davila’s decision to plead guilty. Thus, the Government contends, we

must affirm Davila’s conviction.

                                           II.

      Federal Rule of Criminal Procedure 11 provides that a defendant and the

Government may discuss and reach a plea agreement and that a district court may

accept or reject such an agreement. Fed. R. Crim. P. 11(c)(1), (3). However,

judicial participation in plea discussions is prohibited. Fed. R. Crim. P. 11(c)(1).

In Davila II, the Supreme Court abrogated our rule of automatic vacatur in case of

such judicial participation. 133 S. Ct. at 2149–50. Thus, we must review the
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effect of the Magistrate Judge’s participation in the parties’ plea discussions here

under the provisions of the Federal Rules of Criminal Procedure which govern trial

error: Rule 52(a) and Rule 52(b). See id. at 2147 (“Rule 11 error may be of the

Rule 52(a) type, or it may be of the Rule 52(b) kind, depending on when the error

was raised.”).

      Under Federal Rule of Criminal Procedure 52(a), known as the “harmless-

error rule,” “[a]ny error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.” Rule 52(a) controls when an objection to

trial court error was timely raised in the district court, allowing the Government to

“avoid[] reversal of a criminal conviction by showing that trial error, albeit raised

by a timely objection, affected no substantial right of the defendant and was thus

harmless.” United States v. Vonn, 535 U.S. 55, 58, 122 S. Ct. 1043, 1046, 152 L.

Ed. 2d 90 (2002). Thus, under Rule 52(a), the Government has the burden to show

lack of prejudice.

      Under Federal Rule of Criminal Procedure 52(b), known as the “plain-error

rule,” “plain error that affects substantial rights may be considered even though it

was not brought to the court’s attention.” Rule 52(b) controls when a defendant

fails to timely object to trial court error, allowing the defendant to “nonetheless

obtain reversal of a conviction by . . . showing among other things that plain error


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did affect his substantial rights.” Vonn, 535 U.S. at 58, 122 S. Ct. at 1046. Thus,

under Rule 52(b), the defendant has the burden to show prejudice.

       Here, Davila argues—for the first time on appeal—that the Magistrate Judge

violated Rule 11(c)(1) by improperly participating in plea discussions. Thus,

Davila would normally bear the burden under Rule 52(b) plain-error review of

demonstrating that the error affected his substantial rights in order to obtain

vacatur of his conviction and plea. However, Davila contends that, given the

circumstances of his case—in which the Magistrate Judge’s remarks were made

during a hearing convened to address Davila’s complaints regarding his appointed

counsel, and essentially amplified counsel’s advice to him—he had no meaningful

opportunity to make a contemporaneous objection, and therefore it would be

unrealistic to demand an objection and unreasonable to penalize him for failing to

have made one. Thus, Davila argues, Rule 52(a) harmless-error review should

apply. 10



       10
           The Government contends that Davila abandoned the argument that harmless-error
review applies because he did not make the argument in his opening brief on appeal. See United
States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“A party seeking to raise a claim or
issue on appeal must plainly and prominently so indicate. Otherwise, the issue . . . will be
considered abandoned.”). This position ignores the practical reality that Davila could not have
been expected to make this argument in his opening brief because this circuit’s now-abrogated
automatic vacatur rule rendered such an argument irrelevant. Moreover, the purpose of the
waiver rule would not be served by applying it in the manner the Government proposes. An
appellant must “state and address argument to the issues the appellant desires to have reviewed
by this Court in the appellant’s initial brief because ‘[i]n preparing briefs and arguments, an
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       We recognize that it may be inappropriate in certain circumstances to

penalize a defendant for failing to object to judicial participation in plea

negotiations. Several of our sister circuits have noted in dicta that where defense

counsel’s objection may not be forthcoming because, for example, counsel might

appreciate the court’s “help” in convincing his or her client to plead guilty, or

where counsel’s objection would otherwise be unlikely or futile, it is potentially

unfair to subject the defendant to plain-error review. 11 See, e.g., United States v.

Kyle, 734 F.3d 956, 962 (9th Cir. 2013); United States v. Cano-Varela, 497 F.3d

1122, 1132 (10th Cir. 2007); United States v. Baker, 489 F.3d 366, 372 (D.C. Cir.

2007).

       We find, however, that Davila’s case does not warrant departure from the

rule that plain-error review applies when a defendant fails to contemporaneously




appellee is entitled to rely on the content of an appellant’s brief for the scope of the issues
appealed.’” Fed. Sav. & Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373 n.3 (11th Cir. 1987)
(quoting Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983)). Here, the
Government received adequate notice of the argument that harmless-error review applies and
was given an opportunity to prepare a supplemental brief in response. Thus, the argument was
not abandoned.
       11
           These courts have held, however, that because the defendants in those cases were able
to satisfy the plain-error standard, it was unnecessary to determine whether harmless-error
review should apply and, assuming arguendo that plain-error was the proper standard, vacated
the defendants’ convictions. See United States v. Kyle, 734 F.3d 956, 962–63 (9th Cir. 2013);
United States v. Cano-Varela, 497 F.3d 1122, 1132 (10th Cir. 2007); United States v. Baker, 489
F.3d 366, 373 (D.C. Cir. 2007).

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object to trial error. We note that we have applied the contemporaneous objection

rule even in situations where counsel may not desire to object. See United States

v. Rodriguez, 627 F.3d 1372, 1380 (11th Cir. 2010) (rejecting a “vindictive judge

or cowardly counsel exception to the contemporaneous objection rule” in a case

where defense counsel did not object to a district judge’s comments at sentencing,

when an objection might have implied that counsel thought the judge was biased).

      Moreover, even assuming arguendo that for an error to fall under Rule 52(b),

there must have been a “meaningful” opportunity to contemporaneously object,

and that Loebl’s silence deprived Davila of one such opportunity, Davila had

ample occasion to object himself in the months following the Magistrate Judge’s

comments, and during the time following his plea during which he represented

himself. The record contains no indication that Davila did so, even informally.

Thus, because we do not excuse Davila’s failure to object, we review his case for

plain error. Cf. United States v. Castro, 736 F.3d 1308, 1313 (11th Cir. 2013) (per

curiam) (reviewing a Rule 11(c)(1) violation for plain error where the defendant

failed to object to the district court’s improper comments via any of the attorneys

that represented him, or in his pro se motion to withdraw his plea).

                                         III.

      To obtain reversal under Rule 52(b) plain-error review, a defendant must

show that:
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      there is: “(1) error, (2) that is plain, and (3) that affects substantial
      rights. If all three conditions are met, an appellate court may then
      exercise its discretion to notice a forfeited error, but only if (4) the
      error seriously affects the fairness, integrity, or public reputation of
      judicial proceedings.”

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quoting United

States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785, 152 L. Ed. 2d 860

(2002)).

      With regard to a Rule 11 violation specifically, “a defendant who seeks

reversal of his conviction after a guilty plea . . . must show a reasonable probability

that, but for the error, he would not have entered the plea.” United States v.

Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340, 159 L. Ed. 2d 157

(2004). To meet this standard, Davila need not “prove by a preponderance of the

evidence that but for [the] error things would have been different.” Id. at 83 n.9,

124 S. Ct. at 2341 n.9. Rather, he “must . . . satisfy the judgment of the reviewing

court . . . that the probability of a different result is ‘sufficient to undermine

confidence in the outcome’ of the proceeding.” Id. at 83, 124 S. Ct. at 2341

(quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80

L. Ed. 2d 674 (1984)). In making this determination, we must assess the

Magistrate Judge’s comments “not in isolation, but in light of the full record.”

Davila II, 133 S. Ct. at 2150.



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      Nevertheless, the burden Davila faces in obtaining vacatur of his plea under

plain-error review is a “daunting obstacle” that is “anything but easy to satisfy.”

See Castro, 736 F.3d at 1314 (citations and quotations omitted). Davila “must

prove that the error made a difference in his decision. If the record establishes that

it is as likely that the error had no effect on [his] decision, he cannot prevail.” See

id.

      It is undisputed that the Magistrate Judge’s remarks encouraging Davila to

plead guilty during the February 8, 2010, hearing constitute error, and that the error

was plain. Thus, the issue becomes one of causation: whether the error affected

Davila’s substantial rights. In other words, in light of the full record, has Davila

demonstrated that it is it reasonably probable that, but for the Magistrate Judge’s

remarks, he would have gone to trial?

      We find that Davila has not met this burden. Although Davila has adduced

some evidence in his favor—most significantly, his apparent reluctance to plead

prior to the hearing at which the Magistrate Judge made the improper remarks—in

light of the full record, we are not convinced that it is reasonably probable that the

Magistrate Judge’s comments precipitated Davila’s plea.

      In reaching this conclusion, we are guided by our recent decision in United

States v. Castro, a case in which we denied relief to a defendant under

circumstances that arguably presented “a closer question on prejudice” than those
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here. See Castro, 736 F.3d at 1317 (Martin, J., concurring in the result only). In

Castro, the defendant, Castro, initially pled not guilty to several drug- and firearm-

related charges, but later negotiated and signed a plea agreement. Id. at 1310

(majority opinion). During the subsequent change-of-plea hearing, Castro told the

district court that he was on medication which affected his ability to reason. Id.

Castro’s counsel told the court that this was the first he’d heard of this issue, and

requested a delay so that he could make certain that Castro was able to

comprehend the agreement. Id. The court continued the hearing for two weeks.

Id.

      Three days before the change-of-plea hearing resumed, Castro signed

another plea agreement. Id. On the morning his hearing was to resume, Castro

told his attorney that he did not wish to plead, but nevertheless went ahead with the

hearing. Id. At the hearing, Castro told the district court that he did not want to

plead, was dissatisfied with his attorney’s representation, and wanted the court to

appoint him new counsel. Id.

      The court asked Castro if he understood that “if you don’t plead today[,] [the

Government] may charge you with other things that will make your sentence even

more severe.” Id. at 1311. Castro then indicated that he wished to plead. Id. As

directed by the district court, Castro signed another copy of the plea agreement,

which stated he had not been pressured to plead. Id. Castro also indicated during
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the subsequent plea colloquy that his plea had not been coerced, and acknowledged

that the government could prove the facts proffered in his plea agreement. Id. The

court accepted Castro’s plea. Id. at 1312.

      Castro hired a new attorney to represent him at sentencing. Id. After he was

sentenced, Castro moved pro se to withdraw his plea and to dismiss his new

attorney. Id. The district court denied his motion. Id. Castro then hired another

attorney, who filed a motion for reconsideration. Id. Neither motion mentioned

the court’s comments. Id. Rather, Castro claimed that he had changed his plea due

to his attorney’s urgings, and that his plea was unknowing and involuntary because

he purportedly suffered from various illnesses and took medication that interfered

with his ability to think rationally. Id. The district court denied the motion for

reconsideration. Id.

      Castro appealed, and argued for the first time on appeal that the district

court’s comments constituted a Rule 11(c)(1) violation. Id. Following our

automatic vacatur rule, we vacated his guilty plea. Id. After the Supreme Court in

Davila II abrogated our automatic vacatur rule, we sua sponte vacated our earlier

opinion and granted rehearing of Castro’s appeal, this time applying the plain-error

standard articulated above. Id. at 1312–13 (citing Davila II, 133 S. Ct. at 2150).

      Even though Castro changed his plea to guilty immediately following the

district court’s remarks—which would tend to suggest that the remarks precipitated
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the plea—we found that the timing of Castro’s plea was not dispositive. Id. at

1314. We pointed to several factors that convinced us that, in light of the whole

record, Castro had failed to meet his burden: (1) Castro verified during the plea

colloquy and in the plea agreement that no one had forced him to plead guilty, and

acknowledged that the government could prove the facts of his conduct; (2) Castro

committed to a favorable plea agreement and later moved to withdraw his plea, but

in doing so did not mention the court’s improper comments, instead putting forth

other reasons; and (3) Castro’s conduct—his repeated changing of attorneys and

apparent malingering—“smack[ed] of gamesmanship.” Id. at 1314–15.

Accordingly, we found that:

      Although it is plausible that Castro decided to plead guilty because of
      the comments of the district court, it is, at least, equally plausible that
      Castro pleaded guilty to shorten the duration of his inevitable sentence
      for crimes that he admittedly committed. Because “the effect of [the]
      error on the result in the district court is uncertain or indeterminate
      . . . [Castro] has [failed to prove] . . . that the result would have been
      different but for the error; he . . . [was] prejudice[d]; . . . [or] his
      substantial rights have been affected.”

Id. at 1315 (alterations in original) (quoting Rodriguez, 398 F.3d at 1301). We

therefore affirmed Castro’s conviction. Id.

      Here, the circumstances are similar. Like the defendant in Castro, Davila

initially pled not guilty and later signed a plea agreement, but subsequently—

amidst some outstanding issues regarding his dissatisfaction with his attorney and

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his ability to comprehend the agreement—expressed a desire not to plead. Like the

judge in Castro, the Magistrate Judge improperly warned Davila what

consequences he might face should he choose not to plead. Like the defendant in

Castro, Davila subsequently changed his plea.

      As in Castro, several factors combine to convince us that it is at least equally

plausible that Davila chose to plead “to shorten the duration of his inevitable

sentence” as it is that he did so due to the Magistrate Judge’s comments. See id.

Like the defendant in Castro, Davila (1) swore under oath during his change-of-

plea hearing that his plea was not coerced and acknowledged that the Government

could prove the conduct underlying his offense; and (2) later moved to withdraw

his guilty plea but, in doing so, did not mention the improper comments and

instead offered different reasons for doing so. Moreover, several other factors that

were not present in Castro cast additional weight against a finding of prejudice

here: (3) Davila pled guilty three months after the Rule 11(c)(1) violation occurred,

not—like the defendant in Castro—close on its heels; (4) the District Judge who

approved Davila’s plea agreement and conducted the plea colloquy was not the

judge who committed the Rule 11(c)(1) violation—unlike in Castro, where the

judge who took the defendant’s plea was the same judge who made the improper




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remarks; and (5) Davila’s final plea agreement was significantly more favorable

than the agreement the Government initially offered him. 12

       With regard to the first factor—that Davila swore under oath at his change-

of-plea hearing that his plea was not coerced and that the Government could prove

the conduct underlying the conspiracy count—Davila argues that whatever this

may say about the voluntariness of his plea at the time of the change-of-plea

hearing, it has no bearing on whether his plea was prompted by the Magistrate

Judge’s comments. We disagree. Davila’s statement that no one pressured him to

plead must be taken at face value; to draw inferences to the contrary in Davila’s

favor is not our task under plain-error review.

       Davila also points out that the court’s questioning of a defendant regarding

whether he or she was pressured to plead may be unlikely to illicit information

about pressure from the judiciary itself, either because the defendant may not

realize that this is what the court had in mind, or because the defendant may simply

be reluctant to accuse the court of misconduct. This may be the case, and indeed,

several of our sister circuits have held a defendant was prejudiced by the court’s


       12
          Although the defendant in Castro eventually entered a favorable plea agreement, it is
unclear whether this agreement was different from the one the defendant had originally signed,
before his change-of-plea hearing was continued. 736 F.3d at 1314. Regardless, the analysis
would be similar: that the agreement was favorable provides—in the context of the defendant’s
other actions—at least some evidence that the defendant arguably chose to plead to take
advantage of the agreement, rather than because of pressure from the court.

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improper participation in plea negotiations despite a plea colloquy during which

the defendant stated under oath that his plea was not coerced. See, e.g., United

States v. Pena, 720 F.3d 561, 576–77 (5th Cir. 2013), Baker, 489 F.3d at 375;

United States v. Kraus, 137 F.3d 447, 457–58 (7th Cir. 1998). However, Davila

must prove more than that he may not understand the intent of a question or may

be reluctant to tell the truth. A defendant “bears a heavy burden to show”

statements he made under oath at a plea colloquy were false. United States v.

Rogers, 848 F.2d 166, 168 (11th Cir. 1988). Thus, we must follow Castro and hold

that this factor weighs against a finding of prejudice.

      With regard to the second factor—Davila’s failure to mention the Magistrate

Judge’s comments in his pro se motion to vacate his guilty plea or during the

hearing convened to address it—Davila argues that he agreed to plead guilty to the

conspiracy count for “strategic” reasons: feeling that the Government, the District

Court, and his own counsel were aligned against him, he decided to plead in a

“desperate gambit.” Appellant’s Supp’l Br. at 15. Davila hoped that the

Government would be forced to acknowledge that the conspiracy count misstated

his conduct, and that the District Court “would then reject the plea or take other

remedial action.” Id.

      As noted, the plea agreement—under which the Government agreed to

dismiss the remaining thirty-three counts and to recommend a three-level
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Sentencing Guidelines reduction for acceptance of responsibility—was

significantly more favorable to Davila than the agreement the Government had

originally proposed, under which Davila would have pled guilty to sixteen of the

thirty-four counts. Thus, although Davila’s explanation is not implausible, it is at

least equally likely that Davila decided to plead simply because he had negotiated a

better deal. Furthermore, even if we accept that Davila’s plea was “strategic,” this

does not explain Davila’s failure to mention the Magistrate Judge’s comments in

his efforts to vacate the plea. Also, we note that, if true, Davila’s gambit to some

extent “smacks of gamesmanship.” See Castro, 736 F.3d at 1314. Therefore, as in

Castro, this factor also weighs against a finding of prejudice.

      With regard to the third factor—the three-month delay between the

Magistrate Judge’s comments and Davila’s plea—Davila argues that this delay is

consistent with his claim that the Magistrate Judge’s comments triggered his plea,

because Davila could not immediately negotiate a deal at the time of the comments

due to his then-unresolved competency status. However, Davila must prove more

than that the record is consistent with his argument; he must “show that the error

actually did make a difference.” Rodriguez, 398 F.3d at 1300. Although there is

no clear maximum period of time following a Rule 11 violation after which it

could be said that a guilty plea is necessarily free from taint, cases in which courts

found a defendant prejudiced by such a violation generally involve temporary
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proximity between the violation and the plea. See, e.g., Kyle, 734 F.3d at 966

(finding the defendant was prejudiced where parties reached a plea agreement

twelve days after the district court’s improper comments); Pena, 720 F.3d at 574

(finding the defendant was prejudiced where defendant pled guilty five days after

the district court’s improper comments); Baker, 489 F.3d at 369–370 (finding the

defendant was prejudiced where defendant’s counsel informed that court that the

defendant wished to plead guilty one day after the district court’s improper

comments); United States v. Bradley, 455 F.3d 453, 459 (4th Cir. 2006) (finding

the defendant was prejudiced where defendant pled guilty within a week of the

district court’s improper comments). Thus, the lapse of time in Davila’s case

weighs against a finding of prejudice. See Castro, 736 F.3 at 1316-17 (Martin, J.,

concurring in the result only) (explaining that the lapse of time in Davila’s case

suggests that it is even less likely that Davila was prejudiced than Castro).

      With regard to the fourth factor—that the District Judge who took Davila’s

plea was not the judge who committed the Rule 11(c)(1) violation—Davila

contends that from his perspective, the Magistrate Judge—who made the improper

comments—worked in concert with the District Judge. Davila further argues that

even if he did not impute the Magistrate Judge’s comments to the District Judge,

the damage was done at the time of the Magistrate Judge’s comments. Thus,

Davila argues, it is irrelevant that Davila entered his plea before a different judge.
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      There is no requirement that a reversible Rule 11(c)(1) violation must take

place at the plea hearing, or that the judge who takes the plea be the one who

committed the violation. See Kraus, 137 F.3d at 456–57 (holding error was not

harmless although the district court’s law clerk rather than the court itself

participated in plea discussions). However, it is not irrelevant to the prejudice

analysis that Davila entered his plea before a judge who did not commit the

violation. In the vast majority of cases in which courts have found a defendant was

prejudiced by a Rule 11(c)(1) violation, the judge who made the improper

comments was the same judge who took the plea. See, e.g., Kyle, 734 F.3d at 959;

Pena, 720 F.3d at 577; Baker, 489 F.3d at 360; Bradley, 455 F.3d at 455. Thus, the

fact that “at the time of [Davila’s] plea hearing, there was no blending of judicial

and prosecutorial functions,” Davila II, 133 S. Ct. at 2149, is another circumstance

that weighs against a finding of prejudice. See Castro, 736 F.3 at 1317 (Martin, J.,

concurring in the result only) (explaining that because the district court itself

committed the Rule 11(c)(1) violation during Castro’s plea hearing, the case

“presents a closer question on prejudice” than Davila’s case).

      Davila does not address the fifth factor—that his final plea agreement was

significantly more favorable than the agreement the Government initially offered

him. As discussed above, a likely inference from this is that Davila decided to

plead because he had negotiated a better deal.
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      Finally, Davila makes three broad arguments in support of a finding of

prejudice. First, Davila points out that the record contains ample evidence of his

firm anti-plea mentality prior to the hearing at which the Magistrate Judge made

his improper remarks. As noted, we agree that this factor supports Davila’s

argument. However, in light of the evidence provided by the remainder of the

record, this is not enough to tip the balance and require that we find it reasonably

probable that the Magistrate Judge’s comments caused Davila to plead.

      Second, Davila points to the “extreme nature” of the Rule 11(c)(1) violation

here, characterizing it as “a case of judicial excoriation.” Appellant’s Supp’l Br. at

9–10. Although we agree that the Magistrate Judge’s comments regarding the

desirability of a guilty plea were emphatic and highly improper, we note that, in

essence, the Magistrate Judge’s remarks warned Davila of potentially dire

consequences should he fail to plead (while also reassuring Davila that Loebl was

qualified to represent him). Cf. Castro, 736 F.3d at 1309 (majority opinion)

(finding the defendant was not prejudiced by the district court’s admonition that he

may face additional charges or a more severe sentence should he choose not to

plead). In contrast, cases in which courts have found a defendant was prejudiced

by a Rule 11(c)(1) violation often involve comments endorsing specific provisions

of a proposed plea agreement, or favoring modifications to or different terms for an

agreement. See, e.g., Kyle, 734 F.3d at 960–61; Pena, 720 F.3d at 565; Baker, 489
                                          34
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F.3d at 369; Kraus, 137 F.3d at 449–50. We nevertheless find that this factor

provides some degree of support for Davila’s argument, but not enough to require

a finding of prejudice in light of the full record.

      Third, Davila argues that the Government has not identified any intervening

event that might explain Davila’s decision to change his plea. This argument

mischaracterizes Davila’s burden under plain-error review. Davila must show that

it is reasonably probable that he would not have pled but for the Magistrate Judge’s

comments; the Government need not disprove that the comments precipitated

Davila’s plea by pointing out an alternative explanation for it.

      Although what transpired in Davila’s case was assuredly an unfortunate

violation of Rule 11(c)(1), considering the record as a whole and following Castro,

we are not convinced that Davila has demonstrated a reasonable probability that

“the result would have been different but for the error.” See Castro, 736 F.3d at

1315 (quoting Rodriguez, 398 F.3d at 1301). Thus, Davila has failed to meet his

burden of demonstrating that the error affected his substantial rights under the third

prong of the plain-error standard.

                                           IV.

      For the foregoing reasons, we AFFIRM Davila’s conviction.

      SO ORDERED.


                                           35
