                                                  [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT



                             No. 96-4405

                  D. C. Docket No. 95-438-CR-NESBITT



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                versus

EVANGELIO DIAZ,

                                                  Defendant-Appellant.



          Appeal from the United States District Court
              for the Southern District of Florida

                           (April 14, 1998)




Before DUBINA and BARKETT, Circuit Judges, and GODBOLD,
Senior Circuit Judge.



DUBINA, Circuit Judge:
      Appellant Evangelio Diaz (“Diaz”) and co-defendant Anibal

Quiles (“Quiles”) were charged by a federal grand jury in the

Southern District of Florida with conspiracy to possess cocaine

with intent to distribute, in violation of 21 U.S.C. § 846 (Count

I); possession of cocaine with intent to distribute, in violation

of 21 U.S.C. § 841(a)(1)(Count II); and distribution of cocaine, in

violation of 21 U.S.C. § 841(a)(1)(Count III).                  After a trial by

jury, Diaz was convicted of all three counts.1                 Diaz was sentenced

to   three    concurrent    terms   of   121    months    of    imprisonment    and

concurrent     five-year    terms   of       supervised   release.       He    then

perfected this appeal, which presents the issue of whether the

district court improperly participated in plea negotiations, in

violation of Fed. R. Crim. P. 11(e).
                            I.   BACKGROUND FACTS

      In 1993, federal and state law enforcement agencies began an

operation in South Florida called “Hard Rock.”                 The purpose of the

operation was to alleviate inner city drug trafficking.                        While

acting in an undercover capacity, Special Drug Enforcement Agency

(“DEA”)      Agent   Eric   Williams     (“Williams”)      met    Diaz   and    two

confidential informants (“CI #1") and (“CI #2"), at Bavarian Auto

Parts in Miami to discuss the purchase of three ounces of crack

cocaine.      Agent Williams overheard Diaz tell CI #1 that the crack

cocaine would arrive shortly.          When Agent Williams asked CI #1 why

Diaz had rushed them to the location when the cocaine was not


      1
          Quiles pled guilty to Count III and is not involved in
this appeal.

                                         2
ready, Diaz replied “What he [CI #1] is not telling you, man, is

that I had it, I had it . . . since last week, and you all are

late.” (1SR1:19). Agent Williams then observed Quiles leaving the

scene after speaking with Diaz.          Diaz told Agent Williams that

Quiles had gone to get the cocaine.

     A short time later Quiles returned to the used car lot.                He

motioned Williams, Diaz, and CI #1 inside the office. Once inside,

Williams observed Quiles holding three small clear plastic bags

containing what appeared to be powder cocaine. Quiles attempted to

give the bags to Agent Williams who told Quiles that the product

looked good but was not crack cocaine and that he did not know how

to cook it.

     Diaz then interjected and said, “Don’t worry about that, I

will cook it for you.”      (1SR1:24).      Agent Williams and CI #2 then

left the scene to get some food, while Diaz and CI #1 went to

“cook” the powder cocaine.

     When Agent Williams and CI #2 returned, Quiles told them to be

patient and wait for Diaz who was bringing the package back.

Later, CI #1 called Williams and told him that Diaz was having the

cocaine   powder   cooked   into    crack   cocaine    and   they   would   be

returning shortly.

     When   Diaz   returned,   he    showed    Agent   Williams     rock-like

substances contained in aluminum foil wrapping.              Agent Williams

remarked that the crack cocaine looked ugly, but Diaz insisted it

was of good quality.     CI #1 told Agent Williams that the package




                                     3
really was crack cocaine because he had observed Diaz and his

friends processing it.

     Agent Williams gave Diaz $2,250 in cash.     Diaz apologized for

taking so long to complete the deal and promised that next time

things would run more smoothly.          Agent Williams and the two

informants left the scene with the crack cocaine.      Later, Diaz and

Quiles were arrested.       According to laboratory analysis, the

substance given to Agent Williams by Diaz contained 62.8 grams of

86% pure cocaine base.

     On the day that Diaz and Quiles appeared before the district

court for trial, Quiles’ lawyer advised the court that Quiles

intended to plead guilty, although there was no plea agreement. At

that point, the court asked that Diaz and his lawyer be brought

into the courtroom.    The district court then asked the prosecutor

for information about the facts of the case, and the prosecutor

summarized the government’s evidence.

     The district court inquired as to the penalties for both

defendants   under   the   sentencing   guidelines,   as   well   as   any

mandatory statutory penalties, and the prosecutor responded that

they each faced a ten-year minimum mandatory prison term.              The

district court also inquired about the defendants’ prior records

and spent some time determining the exact nature and extent of

Diaz’s previous convictions for the purpose of ascertaining his

criminal history category.




                                   4
       The district court then asked, “If Mr. Diaz goes to trial, is
                                                                          2
Mr. Quiles going to testify against him?”               (1SR1:15).              The

prosecutor responded that while Quiles was willing to testify, a

decision had not been made as to whether he would.               Additionally,

the prosecutor stated that the undercover officer could provide the

same testimony and that his testimony would be corroborated by two

surveillance agents who saw the transaction, as well as by a

videotape.          The    district     court   remarked,   “That’s   a   lot    of

evidence.”         (1SR1:16).    Diaz’s attorney informed the court that

Diaz       would   probably     enter    into   plea   negotiations   with      the

government if the government would agree to stipulate that the

controlled substance involved in the offense was six ounces of

powder cocaine.           The prosecutor then asked the district court to

give the parties fifteen minutes in the hope that the whole case

could be resolved.             In response, the district court said the

following:

       THE COURT: Okay. Because I think that, see, Mr. Diaz,
       with all of this, I’m glad to go to trial here, I’ve got
       the jurors outside, we’re going to trial. There’s no
       problem about that.

       But you need to think about you, because if this is a
       one-day or two-day trial, and you’re going to risk ten
       years in prison, you need to think about your options.
       You know, I’ll be glad to sit here, we’re glad to try
       your case, but when all of this evidence is going to be
       introduced by agents and undercover conversations with
       you and videotapes, the evidence is kind of compelling.
       The only hangup is this crack or powder cocaine issue,
       really.

       All right.         We will be in recess until 11:00.

       2
          Quiles’ contention was that Diaz alone was responsible
for converting the powder into crack cocaine. (1SR1:12, 14-15).

                                           5
(1SR1:18).

     At 11:30 a.m., the parties returned and the prosecutor stated

that she had not been able to determine whether her office would

accept a plea of guilty with the stipulation that the substance was

powder cocaine but she would find out after the lunch hour.                         The

district court stated that it was unlikely that such a plea would

be acceptable to the government because “it would be contrary to

their general guidelines.         If somebody was there cooking crack,

they’re not going to let you plead to powder.”                    (1SR1:20).        The

district court then gave the defendants the option of pleading

guilty or going to trial.         The court advised the defendants that

the question of whether the cocaine was crack or powder was a

sentencing    issue.     Quiles     pled       guilty    to    Count    III    of   the

indictment.     Diaz exercised his right to go to trial and was

convicted on all three counts of the indictment.

     The court found that Diaz was responsible for a drug offense

involving    62.8    grams   of   crack       cocaine.    Under   the    sentencing

guidelines, the applicable sentencing range for that amount of

crack cocaine was 121 to 151 months imprisonment. U.S.S.G. §§

2D1.1(a)(3),    5A    (Sentencing    Table)       (Nov.       1995).     The    court

sentenced Diaz to 121 months, the lowest possible sentence within

the guidelines range, stating “I am not punishing the defendant

because he went to trial.”        (R4:20).

     Diaz argued for a lower sentence on several grounds, all of

which were rejected by the district court. First, he asserted that

he was responsible for 84 grams of powder cocaine rather than 62.8


                                          6
grams of crack cocaine.    Second, he argued that he was entitled to

a reduction in his offense level for acceptance of responsibility

under U.S.S.G. § 3E1.1.    Third, he claimed that he was entitled to

a two point reduction in his offense level pursuant to the safety

valve provision of 18 U.S.C. § 3553(f).
                     II.    STANDARD OF REVIEW

     A violation of Fed. R. Crim. P. 11(e)(1) is plain error and,

pursuant to its supervisory power over the district courts, the

court of appeals may raise such a violation sua sponte and order a

resentencing of a defendant who pleads not guilty and demonstrates

no actual prejudice in his trial or sentence.      United States v.
Adams, 634 F.2d 830, 831-32 (5th Cir. Unit A Jan. 1981).3
                           III.   DISCUSSION

     Diaz contends that the district court violated Fed.R.Crim.P.

11 when it announced that the United States Attorney’s office would

not approve a guilty plea that involved a stipulation that Diaz

possessed crack cocaine.    He also argues that he was prejudiced at

sentencing because the district court’s participation in the plea

negotiation process prevented him from accepting responsibility,

apparently for possessing powder cocaine, which he was prepared to

do but for the court’s interference.




     3
          In Bonner v. City of Prichard , 661 F.2d 1206 (11 th Cir.
1981) (en banc), the Eleventh Circuit Court of Appeals adopted as
binding precedent the decisions of the former Fifth Circuit issued
before October 1, 1981.

                                   7
       Fed. R. Crim. P. 11(e)(1) provides as follows:

            The attorney for the government and the
            attorney for the defendant . . . may engage in
            discussions with a view toward reaching an
            agreement that, upon the entering of a plea of
            guilty . . ., the attorney for the government
            will [dismiss charges, agree to recommend or
            not oppose a request for a particular
            sentence, or agree that a specific sentence is
            appropriate]. The court shall not participate
            in any discussions.

(Emphasis added).     Rule 11's prohibition on court participation in

plea   negotiations   is   designed   to       entirely    eliminate   judicial

pressure from the plea bargaining process.                  United States v.
                                          th
Casallas, 59 F.3d 1173, 1178 (11               Cir. 1995); United States v.

Corbitt, 996 F.2d 1132, 1135 (11th Cir. 1993).

       The district court’s role under Rule 11 is to evaluate a plea

agreement once it has been reached by the parties and disclosed in

open court.    Adams, 634 F.2d at 835.           Prior to that time, a court

should not offer comments touching upon proposed or possible plea

agreements because “[s]tatements and suggestions by the judge are

not just one more source of information to plea negotiators; they

are indications of what the judge will accept, and one can only

assume that they will quickly become ‘the focal point of further

discussions.’” Id. (quoting United States v. Werker, 535 F.2d 198,
203 (2d Cir. 1976)).       Furthermore, “[t]he purpose and meaning of

this prohibition are that ‘the sentencing judge should take no part

whatever in any discussion or communication regarding the sentence

to be imposed prior to the entry of a plea of guilty or conviction,

or submission to him of a plea agreement.’”               Corbitt, 996 F.2d at

1134 (quoting Werker, 535 F.2d at 201).

                                      8
      In the present case, because the sentencing judge took an

active part in discussing Diaz’s probable sentence before the time

of his conviction and because she commented on the weight and

nature of the evidence against him, we hold that the court violated

Rule 11(e)(1). Pursuant to our supervisory power over the district

courts, we must determine the appropriate remedy, if any, for this

violation of Rule 11.            See Adams, 634 F.2d at 831.          Diaz has

requested   a    new    trial    before   a   different   district   judge     or,

alternatively, resentencing before another judge.               For the reasons

detailed below, we conclude that the district judge’s participation

in plea negotiations did not compromise her neutrality and did not

prejudice Diaz, and therefore we hold that he is entitled to no

relief.

      The primary purpose of Rule 11(e)(1) is to avoid the danger of

an   involuntary       guilty    plea   coerced   by   judicial   intervention.

Corbitt, 996 F.2d at 1134 (citing Brown v. Peyton, 435 F.2d 1352
(4th Cir. 1970)).          A defendant may be motivated to enter an

involuntary guilty plea if he fears that his ”rejection of the plea

will mean imposition of a more severe sentence after trial or

decrease his chances of obtaining a fair trial before a judge whom

he has challenged.”        Id.
      However,     this    case    does    not    raise   the   specter   of   an

involuntary plea.        Indeed, far from being coerced to plead guilty

because a higher sentence was threatened after trial, Diaz chose to

stand trial where he was convicted on all three counts against him.

Significantly, he does not present any errors in this appeal


                                          9
regarding his trial, nor does he claim that his guilt was not

clearly determined.    Consequently, a new trial is unwarranted. See

Adams, 634 F.2d. at 831-32 (holding that defendant who demonstrates

no actual prejudice in his trial was not entitled to new trial

despite trial court’s violation of Rule 11).                Diaz’s general

complaint is that he was prejudiced when the court terminated

negotiations by stating that the United States Attorney’s Office

would not approve a plea of guilty by Diaz to an offense involving

powder cocaine.    This contention is simply without any foundation

in the record.

     Diaz, who was represented by counsel, could have asked the

district court not to proceed with the trial until after the lunch

break, in order to give the prosecutor a chance to determine

whether she had the authority to accept the proposed plea.             This

was not done.    Moreover, we agree with the district court that the

government could not enter into a proposed plea agreement which

would necessarily involve a stipulation by the government that the

offense involved powder cocaine.      Because the evidence in the case

overwhelmingly demonstrated that Diaz had in fact negotiated for

and delivered crack cocaine, a plea involving a stipulation by the

government that the offense involved powder cocaine would have been

patently improper.     See U.S.S.G. § 6B1.4 (stipulation shall not
contain misleading facts).

     Diaz has not made any showing that, but for the court’s

alleged interference, he would have been offered such a plea.

Without   this    showing,   his   claim   of   prejudice    is   baseless.


                                    10
Furthermore, a stipulation between the parties that the offense

involved powder cocaine would not be binding on the district court

which remains free to determine the facts from the Presentence

Investigation Report (“PSI”) and sentence Diaz accordingly.     See

U.S.S.G. § 6B1.4(d).

     Although Diaz has requested resentencing by another district

judge, he has not specifically pointed to any evidence that the

sentencing judge was biased against him or that his sentence would

be different if determined by another judge.      Diaz presented no

evidence, either at trial or at his sentencing hearing, pertaining

to the form or amount of cocaine he agreed to provide and did

provide to Agent Williams.   As a result, all of the direct evidence

in the record indicates that Diaz was guilty of conspiring to

possess and distribute 62.8 grams of crack cocaine.    The district

court correctly found by a preponderance of the evidence that Diaz

negotiated to sell crack cocaine, that he was personally involved

in cooking the cocaine, and that the amount of crack he gave to

Agent Williams was 62.8 grams.

     Moreover, Diaz has failed to demonstrate his entitlement to

any downward adjustments in his base offense level.    Although the

district court denied a downward adjustment for acceptance of

responsibility, the court obviously did not prevent Diaz from
accepting responsibility. Diaz expressed remorse at his sentencing

hearing, but he never admitted that he conspired to deal in crack

cocaine, as opposed to powder cocaine.    The sentencing guidelines

indicate that a defendant who denies relevant conduct which the


                                 11
court finds to be true has acted in a manner inconsistent with the

acceptance of responsibility.    U.S.S.G. § 3E1.1 comment. (n.1(a)).

The fact that Diaz never provided the government with complete and

truthful information about his offenses also precluded the court

from applying the safety valve provisions of 18 U.S.C. § 3553(f).

In short, we see no error in the sentence imposed on Diaz.            The

district judge’s factual findings are abundantly supported by the

record, and her interpretation of the sentencing guidelines is

correct.

     In Adams, the former Fifth Circuit faced the question of how

to remedy violations of Rule 11(e)(1) in cases where the defendant

pleads not guilty and demonstrates no actual prejudice in his trial

and sentencing.    The court determined that a new trial was not

appropriate under such circumstances, but remanded the case for

resentencing   before   a   different    judge   because   the   limited

sentencing record made it difficult to determine whether or not the

sentencing was impartial.    Id. at 842-43.

     However, the remedy employed in Adams is unnecessary in this

case for several reasons.     First,    Adams was decided before the
enactment of the sentencing guidelines, and in pre-guidelines

practice,   “[s]entencing   hearings    [were]   relatively   short   and

typically involve[d] no detailed record and no rulings by the court

other than the sentencing itself.”       Adams, 634 F.2d at 842.       In

fact, in Adams, two relevant conversations with the judge were held

off the record.   634 F.2nd at 832, n.1, 833.     Under the sentencing

guidelines, the sentencing judge operates with significantly less

                                  12
discretion, and during an adversarial hearing, a complete and

detailed record of the justifications behind a sentence is created

for   appellate    review.    Second, in       Adams,   the   district    judge

apparently rejected a proposed plea agreement because she had

committed to imposing a particular sentence if the defendant pled

guilty, and she subsequently came to believe that her promised

sentence was too lenient.       See id. at 832-34.      Thus, her ability to

fairly and impartially sentence the defendant was called into

question.   Id. at 836.      In the present case, the district judge did

not enter into any compromising bargains with respect to potential

sentences, but merely engaged in a straight-forward discussion of

the   applicable    guidelines    in    open   court.     Third,   and     most

importantly, the district court based Diaz’s sentence on entirely

sound reasons and displayed no bias in sentencing him.                   He was

given the minimum sentence available upon the facts as properly

found by the court.

      In conclusion, based on the evidence of record, we conclude

that Diaz is entitled to no relief.            Accordingly, we affirm his

convictions and sentences.

      AFFIRMED.




                                       13
