                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT




                                No. 93-5486



UNITED STATES of AMERICA,
                                        Plaintiff-Appellee,

                                  versus

FARICE DAIGLE, JR.
                                        Defendant-Appellant.



           Appeal from the United States District Court
                for the Western District of Louisiana



                          (February 14, 1995)

     Before POLITZ, Chief Judge, GARWOOD and BENAVIDES, Circuit
Judges.

     BENAVIDES, Circuit Judge:*

     Pursuant to a plea bargain, Farice Daigle, Jr. (Daigle) pled

guilty to one count of possession with intent to distribute cocaine

in violation of 21 U.S.C. § 841(a)(1).        He appeals, arguing, among

other things, that the trial court's participation in the plea

agreement negotiations rendered his guilty plea involuntary.            We

conclude   that   the   trial   court   did   participate   in   the   plea

negotiations in violation of Rule 11(e)(1) of the Federal Rules of


     *
        Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
Criminal Procedure and that the error was not harmless.                       Finding a

reversible error, we therefore vacate Daigle's conviction and his

sentence.

                    I.   FACTS AND PROCEDURAL HISTORY

     Daigle and nine codefendants were charged by indictment with

several narcotics offenses. Daigle pled not guilty. Subsequently,

Daigle and    four       codefendants     went    to     trial    on    a   superseding

indictment.        On the second morning of trial, Daigle decided to

accept the government's offer to plead guilty to one count of

possession with intent to distribute 1550 grams of cocaine in

violation of 21 U.S.C. § 841(a)(1).

     Prior    to     the     judge   accepting      his     plea       in   court,   the

prosecutor, Daigle, the defense attorney, and the trial judge met

in the judge's chambers (at Daigle's request) for an off-the-record

discussion regarding the plea agreement and the length of sentence.

During this discussion, the trial judge informed Daigle that he

followed     the     sentencing      recommendation          of    the       government

approximately 90% of the time.                Daigle subsequently entered his

plea of guilty in open court.

     The written plea agreement expressly provides that it is

pursuant to Rule 11(e)(1)(B), which provides that the sentencing

court is not bound by the government's sentencing recommendation.

The plea agreement further provides that the defendant agrees to

cooperate,    which        specifically       included     testifying        truthfully

against his codefendants, if requested.                In return, the government

agreed to: dismiss the remaining counts; not seek a sentencing


                                          2
enhancement for prior convictions; recommend (1) an "acceptance of

responsibility" reduction and (2) a sentence at the lowest end of

the guideline range. Additionally, the agreement provided that, in

its discretion, the government may file a motion requesting the

court to downwardly depart based on the "substantial assistance" of

Daigle.1      The   district    court,       however,      would   have        the    final

decision   whether       to     accept        the    government's          sentencing

recommendation.

     Daigle informed his codefendants of his decision to plead

guilty, and two of them pled guilty along with him.                                  Daigle

testified against the two remaining codefendants.                    The government

later contended that Daigle's testimony was inconsistent with that

of the other codefendants and the physical evidence. Consequently,

the government refused to file a motion for downward departure

based on substantial assistance.

     Daigle filed a motion to enforce the plea agreement, which the

court initially denied.          The district court eventually held an

evidentiary    hearing    and    determined         that    Daigle       had    provided

substantial    assistance       to   the     government.           The    court        also

determined that, although it could not compel the government to

file a U.S.S.G. §5K1.1 motion for downward departure, it would

enforce the plea agreement based on its finding that Daigle had

substantially assisted the government.               In other words, the court

     1
        The agreement further provided that if the government
filed a motion for downward departure based on substantial
assistance, it would recommend a sentence of 108 months. If
Daigle's cooperation was "extremely helpful," the government may
recommend a greater downward departure.

                                         3
would act as if the government had filed a motion for downward

departure.        Nevertheless,    the       court   refused    to    follow   the

hypothetical recommendation (108 months) and instead, imposed a

sentence of 188 months.

     II.   WHETHER THE TRIAL JUDGE PARTICIPATED IN THE PLEA

           NEGOTIATIONS IN VIOLATION OF RULE 11(e)(1).

     Daigle contends that prior to entering his guilty plea, the

trial judge entered into the plea negotiations in violation of Rule

11(e)(1) of the Federal Rules of Criminal Procedure. Rule 11(e)(1)

provides that "[t]he court shall not participate in any such [plea

negotiation] discussions."        Although a district court may reject a

plea agreement and express its reasons for doing so, "Rule 11(e)(1)

prohibits absolutely a district court from `all forms of judicial

participation      in   or   interference       with   the     plea   negotiation

process.'"   United States v. Miles, 10 F.3d 1135, 1139 (5th Cir.

1993) (quoting United States v. Adams, 634 F.2d 830, 835 (5th Cir.

1981)) (other citations omitted).             "Rule 11(e)(1) simply commands

that the judge not participate in, and remove him or herself from,

any discussion of a plea agreement that has not yet been agreed to

by the parties in open court."               Miles, 10 F.3d at 1140 (quoting

United   States    v.   Bruce,   976   F.2d     552,   556   (9th     Cir.   1992))

(emphasis added).

     As we recently explained in Miles, there are important reasons

for the rule admitting no exceptions.                First, it diminishes the

possibility of judicial coercion of a guilty plea, regardless

whether the coercion would actually result in an involuntary guilty


                                         4
plea.     10 F.3d at 1139.           Second, the judge's involvement in the

negotiations is apt to diminish the judge's impartiality.                          By

encouraging a particular agreement, the judge may feel personally

involved, and thus, resent the defendant's rejection of his advice.

Id.      Third,      the   judge's     participation   creates        a    misleading

impression of his role in the proceedings.              Id.     The judge's role

seems more like an advocate for the agreement than a neutral

arbiter    if   he    joins    in    the   negotiations.       Because      of   these

potential problems, "Rule 11(e)(1) draws a bright line, prohibiting

judicial participation in plea negotiations."              Id.

      The colloquy between the judge and Daigle at the guilty plea

hearing reveals that there was an off-the-record discussion in

chambers among the parties and the judge regarding Daigle's guilty

plea and sentence.         Daigle contends that, during the in chambers

discussion, the trial judge indicated that he would most likely

follow any sentence recommendation by the government, which to

Daigle meant a "cap" of nine years imprisonment.                Daigle cites the

following comment the judge subsequently made at the plea hearing,

"All right, so if nine years is what y'all agreed upon and that's

the     recommendation        made    to   me,   and   there     is       substantial

cooperation, that's the cap of nine years, okay?"                 This statement

strongly supports Daigle's contention that he understood the court

to be indicating a "cap" of nine years if the government so

recommended.

      In United States v. Werker, 535 F.2d 198, 203 (2nd Cir.),




                                           5
cert. denied, 429 U.S. 926, 97 S.Ct. 330 (1976),2 the Second

Circuit opined that a "judge's indication of sentence necessarily

constitutes `participation in such discussions."                       We find the

Second Circuit's reasoning in Werker persuasive.                 During Daigle's

guilty plea hearing, the court acknowledged that it previously had

advised Daigle in chambers that if he "fully cooperated, that 90

percent of the time I will follow the recommendation of the U.S.

Attorney."            Such    an    indication        of   sentence    constitutes

participation.        Accordingly, the judge's conduct violated the

bright    line   of    Rule    11(e)(1)       which    prohibits      any   judicial

participation in plea negotiations.

     That, however, is not the end of the inquiry.                          Although

judicial participation in plea negotiations is an error implicating

a core concern of Rule 11, it nonetheless is subject to the

harmless error analysis.           Miles, 10 F.3d at 1140-41 (citing United

States v. Johnson, 1 F.3d 296 (5th Cir. 1993) (en banc)).

     The government argues that any Rule 11 violation was harmless

because Daigle "was looking at a minimum sentence of twenty years

if he were convicted of violating 21 U.S.C. § 848 and five years

consecutive to all sentences if convicted of 18 U.S.C. § 924(c) at

trial."     The focus, however, of the harmless error inquiry is

whether the district court's flawed compliance with Rule 11 may

reasonably be viewed as having been a material factor affecting the

defendant's decision to plead guilty.                  Johnson, 1 F.3d at 302.

Indeed, as the government candidly admits, Daigle requested to meet

     2
          We cited the Werker opinion in both Miles and Adams.

                                          6
with the trial court because he was concerned "that the agreement

did not guarantee the specific nine year cap he wanted but left it

within the U.S. Attorney's discretion."                          The government further

acknowledges "that the sole purpose of the meeting with the judge

was to gain information concerning the judge's probable response to

a recommendation by the AUSA [prosecutor]."                            Here, it is apparent

that Daigle viewed the "cap" of nine years imprisonment as a

material factor in his decision to plead guilty.                            Thus, it cannot

be    said    that     the     trial    court's           participation        in    the    plea

negotiations was harmless.

       II.    WHETHER DAIGLE IS ENTITLED TO SPECIFIC PERFORMANCE.

       Daigle requests specific performance of the plea agreement,

which he contends the district court modified when it participated

in his plea negotiations.               A defendant is entitled to specific

performance       of   a     plea   agreement         when       the    agreement     has   been

breached.      United States v. Watson, 988 F.2d 544, 553 (5th Cir.

1993), cert. denied, __ U.S. __, 114 S.Ct. 698 (1994).                              Daigle does

not    show   a     breach,     but    instead        relies       on    his   own    mistaken

impression of a 108-month cap which he claims was created by the

plea    bargaining         process.         He       is    not     entitled    to     specific

performance.

       Because of our Rule 11 holding, we do not reach any of

Daigle's remaining contentions.                  Finally, "in order to extend the

prophylactic scheme established by Rule 11,"                             this case will be

assigned to a different judge on remand.                          Miles, 10 F.3d at 1142

(citation, internal quotation marks, and footnote omitted).

                                       CONCLUSION

       For the reasons stated above, Daigle's conviction and his

sentence      are      VACATED;       and   the           case    REMANDED     for     further


                                                 7
proceedings.




               8
