                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3912
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Jeron B. Seward,                        *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 22, 2009
                                Filed: October 15, 2009
                                 ___________

Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.
                          ___________

SHEPHERD, Circuit Judge.

        In September 2008, Jeron B. Seward pled guilty to being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). At his plea colloquy, Seward gave
false testimony regarding his use of an alias when arrested, which caused the district
court1 to impose an obstruction of justice enhancement under the Sentencing
Guidelines. Seward appeals, and we affirm.




      1
        The Honorable D. Gregory Kays, United States District Judge for the Western
District of Missouri.
                                         I.

       On August 10, 2008, Officer Michael Jones of the Kansas City, Missouri,
Police Department observed a vehicle stopped in the middle of the street in front of
9805 Hardesty Avenue. As Officer Jones drove by the car he recognized the
passenger, Jeron Seward. Knowing that Seward had outstanding arrest warrants,
Officer Jones approached the car and asked both men their names, even though he
already knew Seward’s identity. The driver truthfully gave his name, but Seward told
the officer his name was “James Wilson.”

       Officer Jones took Seward into custody based on the outstanding arrest
warrants. He then began a search of the car, and asked Seward and the driver if there
was anything in the car that he needed to know about. The men indicated there was
not, but Officer Jones discovered a loaded Sig Sauer 9mm semi-automatic handgun
under the passenger seat where Seward had been sitting. In a subsequent interview,
Seward denied that the gun belonged to him, but admitted that he knew about the gun
and had handled it.

       On August 20, 2008, Seward was charged in a one-count indictment with being
a felon2 in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The
indictment specifically included the alias “James Wilson.” On September 5, Seward
pled guilty to the indictment, without a plea agreement with the government. During
the plea colloquy, Seward admitted that he had been caught with a firearm that he was
not supposed to have and that he had a prior felony conviction. The court then
inquired into why Seward had the gun, to which Seward’s attorney objected. After
discussion with the parties about the extent of the court’s questions, the court
indicated that it expected candor from Seward, but that the court would accept


      2
      Seward had been previously convicted of attempted robbery and conspiracy
to commit robbery in Wyandotte County, Kansas.

                                         -2-
Seward’s plea “as long as we establish the factual basis of the elements.”3 (Change
of Plea Hr’g Tr. 24, Sept. 5, 2008.) Seward volunteered that he had the gun for his
own protection.

       The court then asked Seward about the circumstances of his arrest, and about
why the indictment charged him under the alias of “James Wilson.” Seward’s
attorney did not object to this line of questioning. Seward stated that Wilson was his
brother, and specifically denied claiming to be Wilson when he was arrested. When
questioned about Officer Jones’s report indicating that Seward gave his name as
“James Wilson,” Seward again denied using the Wilson alias and alleged that the
officer lied in his report. Seward then admitted that the gun he possessed traveled in
interstate commerce. The court accepted Seward’s guilty plea and ordered a
Presentence Investigation Report (PSR).

        Seward’s PSR recommended a base offense level of 20, and a 2-level
enhancement for obstruction of justice, due to Seward’s false denial of his use of the
Wilson alias.4 At the sentencing hearing, Officer Jones testified that Seward did
initially give his name as “James Wilson” when arrested. Based on that testimony and
Seward’s contrary statements at his plea colloquy, the court found that Seward
obstructed justice by lying under oath and adopted the PSR’s recommended two-level
increase under §3C1.1. See United States Sentencing Commission, Guidelines
Manual, §3C1.1 (Nov. 2008). The court also found that Seward’s false testimony was


      3
        To establish a § 922(g)(1) violation, the government must prove that (1) the
defendant had previously been convicted of a crime punishable by imprisonment over
one year, (2) the defendant knowingly possessed a firearm, and (3) the firearm was in
or affected interstate commerce. United States v. Collier, 527 F.3d 695, 701 (8th Cir.
2008). Motive for possessing the firearm is not an element of the offense.
      4
        The PSR recommended other sentence enhancements that the government
abandoned at the sentencing hearing due to lack of evidence. Those recommendations
are not on appeal here.

                                         -3-
inconsistent with acceptance of responsibility for his offense, and refused to reduce
Seward’s offense level under §3E1.1. This left Seward with an offense level of 22.
With a Category II criminal history, Seward’s advisory Guidelines range was 46 to 57
months. After considering the factors set forth in 18 U.S.C. § 3553(a), the court
sentenced Seward to 55 months imprisonment.

      Seward now appeals, arguing that the court’s questioning of the circumstances
surrounding his offense violated the prohibition against judicial participation in plea
negotiations pursuant to Federal Rule of Criminal Procedure 11.

                                          II.

       Rule 11 lays out the requirements for pleas of guilty and nolo contendere, and
generally prohibits a court from participating in plea negotiations between a criminal
defendant and the government. See Fed. R. Crim. P. 11(c)(1) (“The court must not
participate in [plea agreement] discussions.”). Seward claims that the court’s
questioning amounted to interference in his plea, and this interference caused
Seward’s sentence to be enhanced. Because Seward did not object to the court’s
questions regarding the alias at the plea colloquy, the parties agree that we review for
plain error. United States v. Williams, 557 F.3d 556, 559 (8th Cir.), cert. denied, 2009
WL 2043522 (2009).

        Seward’s Rule 11 argument is clearly foreclosed by the plain language of Rule
11 itself. Rule 11(c) applies to plea agreements reached between the government and
a criminal defendant’s attorney (or the defendant when proceeding pro se). It flatly
prohibits a court from participating in those agreements, and for good reason: “the
goal . . . is to prevent even the appearance that the judge is pressuring a defendant to
plead guilty.” 1A Charles Alan Wright & Andrew D. Leipold, Federal Practice and
Procedure § 180 (4th ed. 2008). However, where a guilty plea is not the product of
a plea agreement, Rule 11(c) has no effect. See, e.g., United States v. Reasor, 418

                                          -4-
F.3d 466, 478-79 (5th Cir. 2005) (noting that where there was no plea agreement in
place, Rule 11’s prohibition on judicial participation in plea agreements does not
apply). Seward’s plea was “to the court,” and was not the product of any negotiations
with the government. (See Change of Plea Hr’g Tr. 2-3.) As such, Rule 11(c) is
inapplicable to Seward’s plea.

       It also appears that the district court complied with the other aspects of Rule 11
in finding that Seward’s plea was knowing and voluntary, and the parties do not argue
otherwise. The court questioned Seward extensively about his background, his
medical history, and the factual basis for his plea. The court also informed Seward
of his rights were he to go to trial, and determined that his plea was a knowing and
voluntary waiver of those rights. See Fed. R. Crim. P. 11(b). With such a record, any
argument based on Rule 11 is misplaced.

       Seward’s reliance on Mitchell v. United States, 526 U.S. 314 (1999), is
similarly unpersuasive. In Mitchell, the defendant pled guilty to various drug offenses
involving cocaine, but reserved her right to contest the drug quantity at sentencing.
Id. at 317-18. At sentencing, the defendant did not take the stand, and did not
introduce any evidence of drug quantity, but argued that the government had only
proved that she sold two ounces of cocaine, not the five kilograms with which she was
charged. Id. at 319. The district court ruled that as a consequence of her guilty plea,
the defendant “had no right to remain silent with respect to the details of her crimes.”
Id. At sentencing, the court found that the evidence proved she had sold at least five
kilograms of cocaine, based in part on the fact that she did not testify to the contrary.
Id. The Supreme Court reversed, holding that the defendant retained her Fifth
Amendment privilege against self-incrimination even after pleading guilty, and that
a sentencing court may not draw adverse inferences from a pleading defendant’s
silence. Id. at 325, 329-30.




                                          -5-
       Here, however, it was not Seward’s silence or refusal to testify that resulted in
his enhanced sentence. Rather, it was his false denial, made under oath, regarding his
use of an alias when arrested. Silence on that topic, or a truthful answer, would not
have exposed Seward to an enhanced sentence.5 Although Seward claims that he
feared his silence on the issue of the alias might have been used to enhance his
sentence, that argument is belied by the language of Mitchell, which held that a
pleading defendant’s silence cannot be used against him. Thus, Mitchell does not
support Seward’s argument that the court clearly erred in questioning and sentencing
Seward as it did.

                                          III.

      For the foregoing reasons, we affirm Seward’s sentence.
                      ______________________________




      5
        Indeed, the commentary accompanying §3C1.1 specifically lists “providing a
false name or identification document at arrest” as conduct that ordinarily should not
subject someone to an obstruction of justice enhancement. USSG §3C1.1, comment.
(n.5).

                                          -6-
