     Case: 17-50415    Document: 00514912004       Page: 1   Date Filed: 04/11/2019




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT

                                                             United States Court of Appeals

                                    No. 17-50415
                                                                      Fifth Circuit

                                                                    FILED
                                                                April 11, 2019

UNITED STATES OF AMERICA,                                      Lyle W. Cayce
                                                                    Clerk
             Plaintiff - Appellee

v.

CHARLES SEDBERRY, also known as Smurf, also known as Charles
McDonald-Sedberry, also known as Charles McDonald,

             Defendant - Appellant

                       -----------------------------------------------
                                   consolidated with
                                        17-50434
                        -----------------------------------------------
UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

CHARLES MCDONALD SEDBERRY, also known as Smurf, also known as
Charles McDonald-Sedberry, also known as Charles McDonald,

             Defendant - Appellant




                Appeals from the United States District Court
                     for the Southern District of Texas
                          USDC No. 5:14-CR-916-11
                          USDC No. 5:16-CR-171-1
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                                      No. 17-50415


                         ON PETITION FOR REHEARING
Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
         Defendant’s Petition for Panel Rehearing is GRANTED IN PART.
         IT IS ORDERED that our prior panel decision, United States v. Sedberry
(Mar. 20, 2019), is WITHDRAWN, and the following is SUBSTITUTED in its
place.
         In these consolidated cases, Defendant-Appellant Charles Sedberry
pleaded guilty to conspiracy to possess with intent to distribute 1,000
kilograms or more of marijuana and possession with intent to distribute five
grams or more of methamphetamine. Sedberry appeals his convictions,
alleging the district court violated Federal Rule of Criminal Procedure 11
during his rearraignment hearing, thereby rendering his pleas unknowing and
involuntary. He requests his guilty pleas and sentences be vacated and his
cases remanded to a different district court judge for resentencing. After
careful review, we find no reversible error and affirm.
                                  I. BACKGROUND
A. Pretrial
         In case 17-50415, Sedberry was indicted by a grand jury on three
marijuana-related conspiracy charges and was released on an unsecured bond.
While on pretrial release, Sedberry was charged in state court with the offense
of possession of a controlled substance (methamphetamine). Shortly before the
deadline for a plea agreement in Sedberry’s marijuana case, the Government




         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
         *

be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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                                 No. 17-50415

elevated the state methamphetamine charge and indicted Sedberry in case 17-
50434 for possession with intent to distribute five or more grams of
methamphetamine. Given the changed circumstances, Sedberry moved for a
continuance of the trial and pretrial deadlines in the marijuana case to allow
him the possibility to plead jointly to both cases. Sedberry’s motion explained
that a joint plea would reduce his criminal history level as to each offense and
allow Sedberry the opportunity for concurrent sentences. Sedberry reiterated
his concerns about concurrent sentences when he later filed a motion for
reconsideration of his release on bond.
      Some months later, Sedberry and the Government executed plea
agreements resolving both cases. As relevant to this appeal, the plea
agreement in the methamphetamine case contained the following provision:
            Defendant understands that the Court is not obligated to
      grant reduction[s] for acceptance of responsibility or any other
      request. Defendant understands that the sentence to be imposed
      is within the complete discretion of the Court. Defendant will not
      be permitted to withdraw his agreement to plead guilty because of
      the Court’s decision in imposing such sentence. . . .
            Additionally, if and only if the Defendant pleads guilty to
      this case at the same time he pleads guilty in cause number [17-
      50415, the marijuana case], the United States agrees not to oppose
      the sentences running concurrent to one another.

A rearraignment hearing was then set to allow Sedberry to enter guilty pleas
in both cases according to his written plea agreements. A few days before the
hearing, the Government filed the executed plea agreements with the court
under seal.
B. Rearraignment
      At the rearraignment hearing, the district court conducted the plea
colloquy. The district court confirmed Sedberry wanted to plead guilty to both
charges and asked if he understood the charges against him. After Sedberry


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                                 No. 17-50415

confirmed he understood, the district court then asked if Sedberry had made
the decision to sign the “papers” voluntarily, which Sedberry affirmed. The
district court then verified Sedberry’s attorneys had advised him of his options,
the likelihood of success at trial, and the different consequences of taking a
plea versus going to trial. Next, the district court explained the minimum and
maximum penalties possible for the marijuana and the methamphetamine
charges, including that the sentences could run consecutively to each other.
      At that point, the district court stated to the Government, “My guess is,
Mr. Leachman, that the government is not -- if he accepts responsibility and
there’s no problem between now and the time of sentencing, that the
government will not have any objection to this running concurrently?” The
Government responded, “That’s correct, Your Honor. In fact, the plea
agreement in the [17-50434] case number at the bottom of item number 8
reflects that we will not oppose those running concurrent to one another.” The
district court then addressed Sedberry, stating,
      Now, Mr. Sedberry, on the other hand, if you try to escape from
      custody of the marshals between now and the punishment date
      and I decide to reject that part of the plea agreement and run the
      matters consecutively, then, of course, you can withdraw your plea,
      and we’ll go back to square one. But as long as you do what you’re
      supposed to do between now and the punishment date, then your
      punishment will be running concurrently. Do you understand
      that?

Sedberry responded in the affirmative.
      The district court then went over the factual basis for each charge, and
Sedberry confirmed the facts as stated were true and correct. The district court
also explained that “those facts” did not make Sedberry legally guilty unless
he entered a guilty plea, informing Sedberry if he wanted to change his mind
he could still have a trial. Sedberry said he understood, and the district court


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                                  No. 17-50415

then outlined the benefits of a plea deal along with the constitutional rights he
was giving up in exchange for such benefits. Sedberry said he understood the
rights he was giving up as explained by the district court. After confirming no
one had forced, threatened, or paid Sedberry money to plead guilty, the district
court found Sedberry to be legally competent and found he had received
effective assistance of counsel, had knowledge of the charges and punishment
options in each case, and that a factual basis existed to support the guilty pleas.
The district court further found the plea agreements to have been negotiated
at arm’s length. The district court then asked Sedberry how he pleaded and to
each charge Sedberry pleaded guilty. The court accepted the guilty pleas, set a
date for the joint sentencing hearing, and encouraged Sedberry to be on his
best behavior with the Marshal Service in the meantime.
C. Sentencing
      Relying on the presentence report (“PSR”) prepared by the United States
Probation Office, the district court calculated Sedberry’s sentencing range for
both offenses per the United States Sentencing Guidelines (“U.S.S.G.”), which
resulted in a sentencing range of 360 months to life in prison. At the scheduled
sentencing hearing, the district court overruled Sedberry’s objections to the
PSR and sentenced Sedberry to 180 months in prison for the marijuana case
and five years of supervised release. In the methamphetamine case, the district
court sentenced Sedberry to 60 months of imprisonment and five years of
supervised release. The district court ordered that the sentences of
imprisonment run consecutively for a total of twenty years’ imprisonment, but
the periods of supervised release were to run concurrently. The district court
departed downwards from the recommended Guidelines range because it found
the recommendation of thirty years to be excessive based on Sedberry’s history
and characteristics, as well as the proportionality of his behavior relative to


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                                   No. 17-50415

the co-defendants in the marijuana case. However, the district court did not
explain why it ordered the sentences to run consecutively. Sedberry did not
object to his sentences at the hearing.
      Sedberry timely filed his notices of appeal as to both judgments.
                                II. DISCUSSION
      Because a guilty plea involves the waiver of constitutional rights, it must
be made knowingly and voluntarily. United States v. Brown, 328 F.3d 787, 789
(5th Cir. 2003) (citing United States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002)).
Federal Rule of Criminal Procedure 11 requires a district court to follow certain
procedures to ensure that a defendant’s guilty plea is knowing and voluntary.
Id. Where a defendant did not object to the errors before the district court, the
court reviews for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002).
      A plain error is an error or defect not intentionally abandoned by the
defendant that is “clear or obvious, rather than subject to reasonable dispute.”
Puckett v. United States, 556 U.S. 129, 135 (2009). If, in addition, the error
affects the defendant’s substantial rights, then the court may exercise its
discretion to correct the error if it “seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” Rosales-Mireles v. United States, 138
S. Ct. 1897, 1903 (2018). To make such a showing in a Rule 11 case, a defendant
“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 (2004).
“A defendant must thus satisfy the judgment of the reviewing court, informed
by the entire record, that the probability of a different result is sufficient to
undermine confidence in the outcome of the proceeding.” Id. (internal
quotation marks omitted).




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                                  No. 17-50415

A. Rule 11(b) and (c)(3) Violations
      Sedberry argues the district court violated Rule 11(b)(1) by failing to
inform him of and determine whether he understood the following: 1) the
Government’s right to use against him any statement made under oath in a
prosecution for perjury, Rule 11(b)(1)(A); 2) Sedberry’s right to plead not guilty
or persist in his not-guilty plea, id. 11(b)(1)(B); 3) his right to be represented
by counsel at trial and every other stage of the proceeding, id. 11(b)(1)(D);
4) Sedberry’s right to confront adverse witnesses, be protected from compelled
self-incrimination, “testify and present evidence, and . . . compel the
attendance of witnesses,” id. 11(b)(1)(E); 5) the requirement that the district
court “calculate the applicable sentencing-guideline range and [] consider that
range, possible departures under the [U.S.S.G.], and other sentencing factors
under 18 U.S.C. §3553(a),” id. 11(b)(1)(M); and 6) “the terms of any plea-
agreement provision waiving the right to appeal or to collaterally attack the
sentence,” id. 11(b)(1)(N). Sedberry also contends the district court violated
Rule 11(c)(3)(B) when it advised him that he could withdraw his guilty plea if
the court imposed consecutive sentences rather than running them
concurrently, as outlined in the plea agreements. See Rule 11(c)(3)(B) (“To the
extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court
must advise the defendant that the defendant has no right to withdraw the
plea if the court does not follow the recommendation or request.”).
      As to the alleged Rule 11(b) violations, Sedberry does not provide much
in the way of argument, while the Government, with citations to the record,
contends that the district court essentially did advise Sedberry of his right to
plead not guilty, his right to representation, and the rights Sedberry gave up
by entering a guilty plea. See United States v. Bachynsky, 949 F.2d 722, 726
(5th Cir. 1991) (“A verbatim reading of Rule 11[] to the defendant is not


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                                  No. 17-50415

required as long as the defendant understands the rights he forfeits by
pleading guilty.” (citing United States v. Dayton, 604 F.2d 931, 938 (5th Cir.
1979) (en banc))). After reviewing the record, we find it to be at least arguable
that the district court complied with Rules 11(b)(1)(B), (D), and (E), and
therefore we cannot say the district court committed clear error as to these
alleged violations.
      That leaves us with whether the district court clearly violated Rules
11(b)(1)(A), (M), (N), or 11(c)(3)(B). The Government does not argue that the
district court informed Sedberry of the risks of perjury, of the district court’s
obligation to follow the U.S.S.G. in sentencing and only depart in certain
situations, or that the district court ensured Sedberry understood the waiver
provision in his plea agreements. Similarly, the Government does not contend
the district court’s statement that Sedberry could withdraw his plea if the
district court imposed consecutive sentences was correct and complied with
Rule 11. Nor could it, as the record is clear the district court did not cover the
substance of Rules 11(b)(1)(A), (M), or (N), and incorrectly explained
11(c)(3)(B). Rather, as to all these violations, the Government argues they did
not affect Sedberry’s substantial rights. We turn now to whether there is a
reasonable probability Sedberry would not have entered the guilty pleas but
for these errors.
      Sedberry argues United States v. Amaya, 111 F.3d 386 (5th Cir. 1997)
and United States v. Dolic, 439 F. App’x 425 (5th Cir. 2011) (per curiam)
support his argument that the Rule 11 violations at his rearraignment hearing
created a reasonable probability that, but for these errors, Sedberry would not
have pleaded guilty. In Amaya, the court asserted that “[a] situation in which
a defendant is induced by deception, an unfulfillable promise, or
misrepresentation to enter a plea of guilty does not meet the standard for


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voluntariness articulated by the Supreme Court.” Amaya, 111 F.3d at 389.
There, the defendant planned to plead guilty to one charge in exchange for the
government dismissing another charge and refraining to prosecute him further
for the conduct alleged in the indictment. Id. at 387. However, in the plea
agreement the government reserved its right not to move for a downward
departure from the applicable Guidelines range pursuant to U.S.S.G. § 5K1.1. 1
Id. When defense counsel raised a concern that a new prosecutor might take
over the case and refuse to file a § 5K.1 motion, the district court stated it had
jurisdiction to treat the case as though a § 5K.1 motion had been filed and told
Amaya not to worry. Id. At sentencing, the government did not file a § 5K.1
motion, and the district court reversed course and stated it could not sentence
Amaya as though the government had. Id. Amaya then moved to withdraw his
guilty plea, which the district court denied. Id. at 388. On appellate review,
this court found that because Amaya pleaded guilty under the mistaken belief
that the district court could sua sponte treat his case as though the government
had filed a § 5K.1 motion, and because “Amaya sought to retract that plea once
the district court acknowledged its inability to make such a commitment,” the
court could not find his guilty plea to be knowing and voluntary. Id. at 389.
      In Dolic, the district court committed numerous Rule 11 errors, the most
egregious of which was not asking Dolic how he pleaded to the charges. 439 F.
App’x at 428. It also incorrectly stated that the “Factual Basis” supplied the
relevant conduct to which Dolic was pleading (leading to an inference that
Dolic was subject to a lower sentencing range), did not advise him of the nature
of each charge, and failed to advise him of his right to plead not guilty, to have


      1  “U.S.S.G. § 5K1.1 allows for downward departure upon a motion by the
Government stating that the defendant provided substantial assistance in the investigation
or prosecution of another offender.” Amaya, 111 F.3d at 387 n.1.


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a jury trial, to be represented by counsel at all stages, to confront adverse
witnesses at trial, be protected from compelled self-incrimination, and to
testify, present evidence, and compel the attendance of witnesses. Id. The court
found that “[u]nder the totality of these circumstances, there is a reasonable
probability that, but for these errors, Dolic may not have attempted to enter a
guilty plea.” Id.
      Neither Amaya nor Dolic perfectly fits the facts of this case. The errors
in Dolic were significantly more prevalent and extreme than those present
here, although Amaya’s “unfulfillable promise” somewhat parallels the district
court’s statement in this case that Sedberry could withdraw his plea if his
sentences ran consecutively. Also similar to Amaya, Sedberry clearly evinced
a desire for concurrent sentences prior to his entering a plea. However, unlike
in Amaya, Sedberry’s comments were made well before a plea agreement was
on the table. Further, in Amaya, the reviewing court was not reviewing for
plain error. Amaya, 111 F.3d at 388–89. Here, Sedberry did not object to his
consecutive sentences, nor did he express any concerns about the non-binding
aspect of his plea agreements or evince any confusion or hesitation about the
agreements prior to or at the rearraignment hearing. In fact, Sedberry does
not explain why he would not have pleaded guilty but for the district court’s
Rule 11 violations, and it appears Sedberry had several reasons to accept the
plea—including the Government agreeing to dismiss two of the marijuana
charges and reducing the total amount of marijuana attributable to him.
Accordingly, based on the record as a whole, we cannot say there is a
reasonable probability Sedberry would not have pleaded guilty absent the
district court’s errors.




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                                  No. 17-50415

B. Rule 11(c)(1)
      We next turn to Sedberry’s argument that the district court committed
clear error by impermissibly participating in plea negotiations when it told
Sedberry it would impose concurrent sentences if he did what he was
“supposed” to do and did not try to escape between rearraignment and
sentencing.
      Rule 11(c)(1) “prohibits the sentencing court from participating in plea
negotiations: ‘An attorney for the government and the defendant’s attorney . .
. may discuss and reach a plea agreement. The court must not participate in
these discussions.” United States v. Pena, 720 F.3d 561, 570 (5th Cir. 2013)
(quoting Fed. R. Crim. P. 11(c)(1)). “We have characterized Rule 11’s
prohibition of judicial involvement as a bright line rule, and an absolute
prohibition on all forms of judicial participation in or interference with the plea
negotiation process.” Id. (internal citations and quotation marks omitted). We
have previously found that judges improperly insert themselves into the plea
negotiations “where their statements could be construed as predictive of the
defendant’s criminal-justice outcome; suggestive of the best or preferred course
of action for the defendant; or indicative of the judge’s views as to guilt.” United
States v. Draper, 882 F.3d 210, 215 (5th Cir.) (citing United States v. Ayika,
554 F. App’x 302, 305 (5th Cir. 2014) (per curiam) (collecting examples)), cert.
denied, 138 S. Ct. 2637 (2018). “Thus, where evaluating an objection to
improper judicial participation, ‘[t]he proper inquiry is whether the court was
actively evaluating a [defendant’s decision to plead guilty], as the court is
required to do, rather than suggesting what should occur or injecting
comments while the parties are still negotiating.’” Id. at 215–16 (alterations in
original) (quoting United States v. Hemphill, 748 F.3d 666, 673 (5th Cir. 2014)).




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                                  No. 17-50415

Once again, because Sedberry did not object in the district court, our review is
for plain error. Id. at 215.
      The Government claims the district court did not participate in the plea
negotiations because the district court’s statement was simply a warning
regarding prospective conduct rather than a suggestion as to what should
occur. The Government argues the district court “obviously” made this
statement because it was influenced by Sedberry’s commission of a second
offense while on pretrial release. While it does not seem “obvious” that
Sedberry’s previous behavior would lead one to believe Sedberry might try to
escape, the Government’s characterization of the district court’s statement as
a word of caution going forward is supported by the district court’s
pronouncement at the end of the hearing encouraging Sedberry to be on his
best behavior.
      Even if the district court’s statement did amount to a comment on the
plea agreements rather than a prospective warning, the comment was made
after Sedberry had decided to plead guilty. See Hemphill, 748 F.3d at 672–73
(finding no error where the district court’s comments on the defendant’s
sentence came during the plea colloquy after the defendant had already
decided to plead guilty). Sedberry cites to United States v. Rodriguez, 197 F.3d
156 (5th Cir. 1999), to show that a statement made after a defendant has
decided to plead guilty can still violate Rule 11. However, Rodriguez is readily
distinguishable, as the district court there implied the defendant would likely
be found guilty at trial as the defendant was clearly waffling on whether to
plead guilty—initially expressing doubt about wanting to plead guilty, then
asking to be found guilty, then demonstrating a willingness to go to trial, and
finally, after two recesses, deciding to plead guilty. Rodriguez, 197 F.3d at 158–




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59. We do not have such a situation here. Accordingly, the district court’s
statement was not clear error.
                                 CONCLUSION
     For the foregoing reasons, we affirm the judgments of the district court.




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