           Case: 12-12927   Date Filed: 09/26/2013   Page: 1 of 21


                                                                     [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12927
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:11-cr-80187-KLR-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ARMANDO ANTONIO CASTRO,
a.k.a. Antonio,
a.k.a. Tony,

                                                          Defendant-Appellant.

                       ________________________

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

                            (September 26, 2013)

                   ON PETITION FOR REHEARING

Before PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      This appeal presents the issue whether Armando Antonio Castro is entitled

to vacatur of his guilty plea on the ground that the district court committed plain

error, in violation of Federal Rule of Criminal Procedure 11(c)(1), by advising

Castro about the penal consequences of rejecting his written plea agreement.

Castro entered a written agreement with the United States to plead guilty to several

counts of his indictment, but Castro renounced his agreement on the morning of his

change of plea hearing. After the district court advised Castro that, “if you don’t

plead today[,] [the government] may charge you with other things that will make

your sentence even more severe,” Castro entered pleas of guilty in accordance with

his plea agreement. We initially granted Castro relief under our precedents that

established a rule of automatic vacatur for judicial participation in plea discussions,

but we sua sponte vacated our earlier opinion and granted rehearing of this appeal

after the Supreme Court abrogated that rule in United States v. Davila, 569 U.S.

___, 133 S. Ct. 2139 (2013). Under Davila, we must consider “the full record” and

determine “whether it was reasonably probable that, but for the . . . [single

comment of the district court], [Castro] would have exercised his right to go to

trial.” Id. at 2150. We ordered the parties to file supplemental briefs addressing

how to resolve this appeal in the light of Davila, and they did so. Because the

record does not establish that, but for the comment of the district court, Castro

would have exercised his right to trial, we affirm his convictions.


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                                    I. BACKGROUND

      A grand jury returned a 14-count indictment that charged Castro for five

counts of possessing with intent to distribute marijuana, 21 U.S.C. § 841(a)(1),

(b)(1)(D), one count of possessing with intent to distribute marijuana and cocaine,

id. § 841(a)(1), (b)(1)(C), (b)(1)(D), two counts of carrying a firearm during and in

relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1), four counts of

possessing a firearm in violation of a court order, id. §§ 922(g)(8), 924(a)(2), one

count of possessing a firearm with an obliterated serial number, id. § 922(k), and

one count of dealing in firearms without a license, id. §§ 922(a)(1)(A),

924(a)(1)(D). A magistrate judge appointed the federal public defender to

represent Castro at his initial appearance, but Castro later retained a private

attorney, Richard Castillo. At his arraignment hearing, Castro entered a plea of

not guilty to each charge in his indictment.

      Castro later negotiated a written plea agreement with the United States and

signed the agreement a few minutes before his change of plea hearing on January

25, 2012. During the plea colloquy, Castro told the district court that he was under

the influence of “medication” and it affected his ability to reason or think.

Attorney Castillo said that Castro’s response was the “first time that [he had] heard

from Mr. Castro today that he was having an issue with the medication as to his

ability to understand what was going on with the proceedings,” and Castillo


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requested additional time to confer with Castro. After Castillo spoke with Castro

and “still [had] some reservations as to his ability to comprehend everything,”

Castillo requested a delay to determine “what [Castro had been] taking because

when . . . sp[eaking] with him [two nights earlier] until about 11:00, [counsel]

didn’t detect any issues with him comprehending” the plea agreement. The district

court continued Castro’s change of plea hearing for two weeks.

      On February 7, 2012, three days before his change of plea hearing resumed,

Castro again signed a plea agreement with the United States. Castro agreed to

plead guilty to seven charges: two counts of possessing marijuana with intent to

distribute, 21 U.S.C. § 841(a)(1), (b)(1)(D), one count of possessing with intent to

distribute marijuana and cocaine, id. § 841(a)(1), (b)(1)(C), (b)(1)(D), one count of

carrying a firearm during and in relation to a drug trafficking offense, 18 U.S.C.

§ 924(c)(1), two counts of possessing a firearm in violation of a court order,

id. §§ 922(g)(8), 924(a)(2), and one count of dealing in firearms without a license,

id. §§ 922(a)(1)(A), 924(a)(1)(D). In exchange, the United States agreed to

dismiss the seven remaining charges and to recommend that Castro receive

reductions to his sentence that corresponded with his acceptance of responsibility

and his level of cooperation.

      On the morning of his change of plea hearing, Castro notified Attorney

Castillo that he did not want to plead guilty. At the hearing, Castillo announced


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that Castro did not want to change his plea to guilty; Castro was dissatisfied with

Castillo’s representation; and Castro wanted the district court to appoint him a new

attorney from the public defender’s office. The district court questioned Castro,

who confirmed that he did not want to plead guilty:

      THE COURT: Is this your wish, you did not want to go forward with
      the plea?

      THE DEFENDANT: That’s right.

      THE COURT: Is it still your wish that you don’t want Mr. Castillo to
      represent you?

      THE DEFENDANT: I can’t pay him anymore, no.

      THE COURT: This means that you don’t want him to represent you?

      THE DEFENDANT: I don’t want him to represent me.

      ...

      THE COURT: I guess I could appoint the public defender.

      At Castillo’s request, the district court advised Castro of the consequences of

reneging on his plea agreement. Castro decided to plead guilty.

      MR. CASTILLO: I just need Mr. Castro [to] understand that if he
      doesn’t resolve the matter today that the government [intends] to
      withdraw whatever plea offer has been conveyed.

      THE COURT: Do you understand that the government has made you
      a plea offer in which they have made certain concessions, that if you
      don’t plead today they may charge you with other things that will
      make your sentence even more severe? Do you understand that?

      THE DEFENDANT: Yes.
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       THE COURT:           And you still want to go ahead with a public
       defender?

       THE DEFENDANT: No.

       THE COURT: Who do you want to represent you?

       THE DEFENDANT: I’ll just finish with Mr. Castillo then.

       THE COURT: Do you want to plead today then?

       THE DEFENDANT: Yes.

       At the direction of the district court, Castro signed another copy of the plea

agreement. Castro identified the written agreement, which stated that he agreed to

“enter[] into the Plea Agreement freely and voluntarily, and no threats or promises,

other than the promises contained in this . . . Agreement, were made to induce

[him] to enter his plea of guilty.” Castro verified that he understood the seven

charges to which he was pleading guilty; the potential sentence for each offense;

the rights attendant to trial that he was waiving by pleading guilty; and that he had

the “right to plea[d] not guilty . . . and to persist in the plea.” Castro also

acknowledged that he had not been coerced to plead guilty and that he could not

withdraw his pleas of guilty if he was dissatisfied with the sentence imposed by the

district court.

       THE COURT: Has anyone attempted in any way to force you to
       plead guilty?

       THE DEFENDANT: No.
       ...
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      THE COURT: Do you understand that any sentence the Court
      renders will be influenced by the advisory sentencing guidelines and
      no one knows exactly what those guidelines will provide at this time.
      But that you may not withdraw your plea if the Court should sentence
      you to a term larger than you are now expecting, you understand that?

      THE DEFENDANT: Yes.

      Castro acknowledged that the government could prove the facts proffered in

his plea agreement. The proffer stated that undercover officers visited Castro’s

rental property in Loxahatchee, Florida, to investigate reports that he was operating

a brothel with women who had been smuggled into the United States. During the

visit, Castro bragged to the undercover officers that he controlled a grow house

that would produce 60 to 70 pounds of marijuana. The undercover officers

returned to Castro’s rental property on several occasions and recorded eight

transactions in which they purchased more than 1,000 grams of marijuana, several

grams of cocaine, 12 firearms, and large quantities of ammunition. All of the

firearms had been stolen from a single location in Miami-Dade County. Although

Castro was prohibited in a restraining order from possessing firearms and

ammunition, Castro displayed on his waistband a black semiautomatic pistol and

showed the undercover officers an AK-47 style assault rifle and a .22 caliber rifle

during his first two drug transactions. After agents of the Bureau of Alcohol,

Tobacco, Firearms and Explosives and of the Federal Bureau of Investigation

arrested Castro on the rental property, the agents searched the property and seized


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three firearms, various types of ammunition, marijuana and cocaine, and

approximately $1,000 in cash.

      Castro told the district court that he had reviewed his written plea agreement

“today” in Spanish with the assistance of a translator. When asked how he wanted

to plead to the charges, Castro responded, “Guilty.” The district court found that

Castro’s “plea of guilty [was] a knowing and voluntary plea supported by an

independent basis in fact containing each of the essential elements of the offense,”

and the district court accepted Castro’s plea.

      Castro’s presentence investigation report provided an advisory guideline

range between 87 and 108 months of imprisonment. In the meantime, Castro hired

a new attorney to represent him at sentencing, Richard Della Fera. Della Fera filed

an objection to Castro’s presentence report that requested that the district court

vary downward from the advisory range and sentence Castro to a term of home

confinement followed by supervised release. The government responded that

Castro had benefitted considerably from his plea arrangement and requested that

the district court sentence Castro to 158 months of imprisonment.

      The district court sentenced Castro to 156 months of imprisonment. The

district court based its decision on evidence that Castro was “running brothels with

immigrant prostitutes”; had “[e]ight instances of domestic violence”; and had not

“filed any tax returns” despite making “money in various businesses.” The district


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court also mentioned that “the government [had been] very generous in [dismissing

a second charge for carrying a firearm], which would have added 25 years.”

      Eight days after he was sentenced, Castro moved pro se to withdraw his

pleas of guilty and to dismiss Della Fera as counsel. In the motion, Castro

“expressed his displeasure with . . . Della Fera, and his sentence and [he] desire[d]

to withdraw[] his plea [for] which [he] was sentence[d] to 156 months.” The

district court denied Castro’s motion after “having reviewed the pertinent portions

of the record and being duly advised in the premises.”

      Castro then retained a third attorney, Allen Stewart Kaufman, who filed a

motion for reconsideration arguing that Castro was entitled to withdraw his plea of

guilty. Castro argued that he was “denied his right to counsel under the Sixth

Amendment” because “of the misrepresentations of [Paul] Lazarus . . . regarding

his ability to represent [Castro] in federal court.” According to Castro, attorney

Lazarus accepted a retainer; “convinced [Castro] that [his case] could [be]

resolve[d] . . . by way of a plea agreement”; negotiated a plea agreement with the

government; and persuaded Castro to plead guilty despite his misapprehensions

about the “jail time [being] excessive.” Castro also argued that his plea was

unknowing and involuntary because he suffered from “many maladies,” ranging

from gout and alcohol dependence to kidney and heart disease and, because of

those illnesses “and medications, his frame of mind was such that he was unable to


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think clearly and rationally with regard to pleading guilty.” The district court

denied Castro’s motion.

      Castro appealed and, for the first time, argued that the district court

participated in plea discussions, in violation of Federal Rule of Criminal Procedure

11(c)(1). The United States responded that the district court could not have

interfered with plea negotiations because Castro had already executed a written

plea agreement. We concluded that Castro’s appeal was controlled by our holding

in United States v. Casallas, 59 F.3d 1173, 1177–79 (11th Cir. 1995), that the

district court violated the prohibition against judicial participation by advising the

defendant of the consequences of renouncing his plea agreement, and we vacated

Castro’s pleas of guilty.

      After the Supreme Court issued its decision in Davila, we sua sponte vacated

our earlier opinion and granted rehearing of the appeal. In a separate order, we

instructed the parties to file supplemental briefs. Castro argues that he is entitled to

a vacatur of his pleas of guilty because “[i]t is obvious” that the comment of the

district court swayed him to plead guilty, as evidenced by his decision to plead

guilty on the heels of the judicial participation. The United States responds that

Davila cannot satisfy his burden, under review for plain error, to prove “a

reasonable probability that, but for the one intemperate remark . . ., he would have

gone to trial.”


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                          II. STANDARDS OF REVIEW

      When a defendant fails to object to an alleged violation of Rule 11(c)(1), we

review the alleged violation for plain error. Davila, 133 S. Ct. at 2147; United

States v. Brown, 526 F.3d 691, 704 (11th Cir. 2008), cert. granted and judgment

vacated on a different ground, 129 S. Ct. 1668 (2009). Plain error occurs when the

district court commits an error that is plain, affects the defendant’s substantial

rights, and “seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005)

(internal quotation marks and alterations omitted). Under this standard, “the

defendant who [remains] silent . . . has the burden to show that his ‘substantial

rights’ were affected.” United States v. Vonn, 535 U.S. 55, 63, 122 S. Ct. 1043,

1048 (2002).

                                  III. DISCUSSION

      Our earlier precedents established that judicial participation in plea

discussions of the kind that occurred in this case is plain error, but the Supreme

Court abrogated our rule of automatic vacatur and held that “Rule 11(h) . . . calls

for across-the-board application of the harmless-error prescription (or, absent

prompt objections, the plain-error review).” Davila, 133 S. Ct. at 2149. In so

doing, Davila rejected our long-standing precedents providing that a defendant

need not show actual prejudice to obtain relief from a plea of guilty obtained in


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violation of Rule 11(c)(1). See United States v. Tobin, 676 F.3d 1264, 1303–07

(11th Cir. 2012); United States v. Diaz, 138 F.3d 1359, 1362 (11th Cir. 1998);

Casallas, 59 F.3d at 1176–79; United States v. Corbitt, 996 F.2d 1132, 1134–35

(11th Cir. 1993). “We are bound to follow a prior panel or en banc holding, except

where that holding has been overruled or undermined to the point of abrogation by

a subsequent en banc or Supreme Court decision.” United States v. Whatley, 719

F.3d 1206, 1216 (11th Cir. 2013) (quoting Chambers v. Thompson, 150 F.3d 1324,

1326 (11th Cir. 1998)).

      Davila instructs that, when a defendant does not complain to the district

court about its participation in plea discussions, a reviewing court “should . . .

consider[] whether it was reasonably probable that, but for the . . . exhortations [of

the district court], [the defendant] would have exercised his right to go to trial.”

Davila, 133 S. Ct. at 2150. To make that determination, we must evaluate the

comments of the district court, “not in isolation, but in light of the full record.” Id.

Although the immediate response of the defendant to the judicial participation

informs our decision, “other portions . . . of the limited record” are equally

illuminating in determining what effect the participation had on the defendant’s

decision. See Vonn, 535 U.S. at 74, 122 S. Ct. at 1054–55. In other words, we can

consider events that precede and postdate the error. See Davila, 133 S. Ct. at

2149–50 (discussing the defendant’s conduct after the judicial participation and


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explanation for his decision to plead guilty); Vonn, 535 U.S. at 74–75, 122 S. Ct. at

1055 (instructing the appellate court on remand to consider a defendant’s

sentencing hearing and the record of the defendant’s initial appearance and

arraignment); see also United States v. Dominguez Benitez, 542 U.S. 74, 83, 124

S. Ct. 2333, 2340 (2004) (“[T]he reviewing court[] [examining for plain error is]

informed by the entire record.”).

      Because he failed to raise this issue in the district court, Castro faces a

“daunting obstacle” in obtaining a vacatur of his guilty plea. See United States v.

Pielago, 135 F.3d 703, 708 (11th Cir. 1998). Castro must prove that, “but for the

error [of the district court], he would not have entered the plea.” Brown, 526 F.3d

at 704 (quoting Dominguez Benitez, 542 U.S. at 83, 124 S. Ct. at 2340). And that

burden “is anything but easy” to satisfy. United States v. Rodriguez, 398 F.3d

1291, 1299 (11th Cir. 2005). Castro 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 Castro’s decision, he cannot prevail:

      [T]he burden truly is on the defendant to show that the error actually
      did make a difference: if it is equally plausible that the error worked
      in favor of the defense, the defendant loses; if the effect of the error is
      uncertain so that we do not know which, if either, side it helped the
      defendant loses.

Id. at 1300.




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      The timing of Castro’s decision to plead guilty is not dispositive. The

comment by the district court arguably had an effect on Castro’s decision, but

prejudice is not measured “based on the speculative standard of what is

‘arguable.’” Id. at 1304. “‘Arguable’ is not enough to satisfy the third-prong test

of prejudice.” Id. Castro asserts that he was prejudiced by the comment, but he

fails to explain how the comment affected his decision.

      After Castro decided to change his plea to guilty, he signed another copy of

his plea agreement that stated he had not been pressured to plead guilty, and he

then verified during an oral colloquy that he had not been forced by “anyone” to

plead guilty. The district court advised Castro that he was entitled to “persist in the

plea” of not guilty, but Castro admitted that he was guilty of several drug and

firearm offenses. Castro has never repudiated those admissions. See United States

v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (“[W]hen a defendant makes

statements under oath at a plea colloquy, he bears a heavy burden to show his

statements were false.”); United States v. Gonzalez–Mercado, 808 F.2d 796, 800

n.8 (11th Cir. 1987) (“[T]here is a strong presumption that the statements made

during the colloquy are true.”).

      Castro later moved to withdraw his plea, but sought that relief on grounds

that he was dissatisfied with his sentence; he was denied his right to counsel; and




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he had pleaded guilty under duress from his attorney. Castro did not mention the

comment by the district court.

      “[P]articular facts and circumstances matter” in evaluating whether a

defendant has been prejudiced by judicial participation in plea discussions, Davila,

133 S. Ct. at 2149, and we are not convinced that Castro would have rejected the

plea agreement had the district court not advised him of the consequences of

reneging on his plea agreement. By pleading guilty, Castro avoided prosecution

and punishment for seven offenses, including a second charge of carrying a firearm

during a trafficking offense for which he faced a mandatory sentence of 25 years of

imprisonment that had to run consecutively to his other sentences. See 18 U.S.C.

§ 924(c)(1)(C)(i), (D)(ii). And Castro’s conduct in the district court smacks of

gamesmanship and suggests that he decided to plead guilty because he did not

want to forego a favorable agreement. Castro changed attorneys repeatedly;

retained attorneys, despite telling the court that he was penniless; and postponed

entering a change of plea ostensibly because he was under the influence of an

unspecified “medication.” See United States v. Graham, 643 F.3d 885, 894 (11th

Cir. 2011) (“A defendant cannot use the right to counsel as a means to manipulate

the court and cause delay.”). Castro later moved pro se to withdraw his plea

because he was displeased with the sentence he received, see Gonzalez–Mercado,

808 F.2d at 801 (explaining that defendants should not be permitted “to use the


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guilty plea as a means of testing the weight of the potential sentence”), and when

that proved unsuccessful, he sought reconsideration on the grounds that he had

been denied his right to counsel and had “succumbed” to the pressure exerted by

defense counsel to plead guilty, see United States v. Buckles, 843 F.2d 469, 472

(11th Cir. 1988) (“A defendant cannot complain of coercion where his attorney,

employing his best professional judgment, recommends that the defendant plead

guilty.”).

        “All pleas of guilty are the result of some pressures or influences on the

mind of the defendant,” Schnautz v. Beto, 416 F.2d 214, 215 (5th Cir. 1969), but in

this appeal it is unclear what compelled Castro to plead guilty. Although it is

plausible that Castro decided to plead guilty because of the comment 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.” Rodriguez, 398 F.3d at 1301.

                                  IV. CONCLUSION

       We AFFIRM Castro’s convictions.




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MARTIN, Circuit Judge, concurring in result only:

       I agree with the Majority’s conclusion that Mr. Castro has not shown the

District Court’s Rule 11(c)(1) violation was plain error. I write separately to raise

three points that bear emphasis. First, although United States v. Davila changed

the standard for evaluating a Rule 11(c)(1) error on appeal, see 569 U.S. ___, ___,

133 S. Ct. 2139, 2143 (2013), it did not change our law for determining whether

there was a Rule 11(c)(1) error or whether that error was plain. It is still true that

the District Court’s comments described in the Majority opinion violated the Rule

11(c)(1)’s prohibition on judicial participation in plea discussions. Thus, Mr.

Castro has shown error that is plain. See United States v. Cotton, 535 U.S. 625,

631, 122 S. Ct. 1781, 1785 (2002) (“[B]efore an appellate court can correct an

error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects

substantial rights.” (quotation marks and alterations omitted)).

       Second, Rule 11(c)(1)’s ban on judicial involvement in plea discussions

remains an important prophylactic rule even after Davila. While Davila overruled

our precedent that judicial participation in plea discussions required automatic

vacatur without regard to case specific circumstances, see 133 S. Ct. at 2143, 2148,

the Supreme Court did not immunize violations of Rule 11(c)(1) from appellate

scrutiny. Rather, Davila held that a reviewing court must “consider all that

transpired in the trial court in order to assess the impact of the error on the


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defendant’s decision to plead guilty.” Id. at 2148. In doing so, the Supreme Court

concluded that Rule 11(c)(1) errors are not “structural,” meaning they do not

belong to a “very limited class of errors that trigger automatic reversal because

they undermine the fairness of a criminal proceedings as a whole.” Id. at 2149

(quotation marks omitted). In other words, Rule 11(c)(1) errors, like most errors

appellate courts review, are subject to harmless error analysis. But that does not

diminish the important prophylactic purposes that Rule 11(c)(1) serves and

promotes.

      It is just as true today, as it was before Davila, that Rule 11(c)(1) was

“designed to totally eliminate judicial pressure from the plea bargaining process.”

United States v. Corbitt, 996 F.2d 1132, 1135 (11th Cir. 1993). Davila did

nothing to vitiate the important reasons that warrant separating the sentencing court

from the plea discussions, such as: (1) judicial participation in the plea process

may coerce the defendant into accepting a proposed agreement or entering a plea

of guilty involuntarily; (2) judicial participation may affect the court’s impartiality;

and (3) judicial participation affects the appearance of impartiality. See United

States v. Casallas, 59 F.3d 1173, 1178 (11th Cir. 1995).

      Finally, turning to the merits of Mr. Castro’s claim, this case presents for me

a closer question as to whether Mr. Castro’s substantial rights were affected than

the Majority’s opinion suggests. As I’ve said, I think the Majority correctly


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concluded that Mr. Castro has not shown, based on the full record, that “it was

reasonably probable that, but for the . . . [single comment of the district court],

[Castro] would have exercised his right to go to trial.” Majority Op. at 2 (quoting

Davila, 133 S. Ct. at 2150 (alterations in Majority Op.)). But the Majority’s

opinion goes further than I would in minimizing the timing of Mr. Castro’s guilty

plea in relation to the Rule 11(c)(1) violation by saying: “[t]he timing of Castro’s

decision to plead guilty is not dispositive. The comment by the district court

arguably had an effect on Castro’s decision, but prejudice is not measured based on

the speculative standard of what is arguable.” Majority Op. at 14 (quotation marks

omitted).

      While timing may not always be “dispositive,” I say it remains an important

factor. Indeed, in light of the closeness in time of the District Court’s comment to

Mr. Castro and his decision to plead guilty, it seems to me that the effect is more

than what the Majority characterizes as “arguable.” There are circumstances in

which timing may still be dispositive. Davila is instructive on this point:

             Had Davila’s guilty plea followed soon after the Magistrate
      Judge told Davila that pleading guilty might be “the best advice” a
      lawyer could give him, see App. 152, this case may not have
      warranted our attention. The automatic-vacatur rule would have
      remained erroneous, but the Court of Appeals' mistake might have
      been inconsequential. See Tr. of Oral Arg. 47 (Counsel for the
      Government acknowledged that if there is a “serious [Rule 11(c)(1) ]
      error,” and the defendant pleads guilty “right after that,” the error
      would likely qualify as prejudicial).


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133 S. Ct. at 2149.

      In Davila there was a three month gap between the Rule 11(c)(1) violation

and the defendant’s guilty plea. Id. (“Three months distanced the in camera

meeting with the Magistrate Judge from Davila’s appearance before the District

Judge who examined and accepted his guilty plea and later sentenced him.”). In

contrast, there was no gap in Mr. Castro’s case. At Mr. Castro’s change of plea

hearing, he told the District Court that he did not want to plead guilty. In that same

proceeding, the District Court advised Mr. Castro that if he did not plead guilty

that day, there might be consequences that would result in a more severe sentence

for him. Then Mr. Castro immediately went forward with his plea of guilty.

Because there was no gap in time, Mr. Castro is not similarly situated to the

defendant in Davila. Further, because the District Court itself committed the Rule

11(c)(1) violation at the time of the plea hearing—unlike in Davila where a

magistrate judge had committed the violation three months earlier—it cannot be

said “there was no blending of judicial and prosecutorial functions” at the time

Castro pleaded guilty. Id. For these reasons, I believe Mr. Castro’s case is

factually distinguishable from Davila and presents a closer question on prejudice.

      Even so, taking into consideration all of the circumstances identified by the

Majority and the fact that Mr. Castro had the burden to prove his substantial rights

were affected because he failed to object in the District Court, I am persuaded that


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there is not a reasonable probability that, but for the District Court’s single

statement (which was error and plain), Mr. Castro “would have exercised his right

to go to trial.” Id. at 2150.




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