     Case: 15-30568      Document: 00513525178         Page: 1    Date Filed: 05/27/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                      No. 15-30568                               FILED
                                                                             May 27, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

RAYMOND CHRISTOPHER REGGIE,

              Defendant – Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:13-CR-111-1


Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:*
       After Raymond Christopher Reggie pleaded guilty to five counts of wire
fraud, the district court sentenced him to 135 months of imprisonment, two
years of supervised release, and ordered him to pay restitution. Reggie now
appeals, contending, inter alia, that the district court erred in failing to
determine whether his plea was voluntary as required by Federal Rule of
Criminal Procedure 11(b)(2) in a way that violated his substantial rights. We



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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agree, and accordingly VACATE the judgment and REMAND for further
proceedings.
                                     I. Background
       On August 14, 2013, the Government filed an indictment charging
Reggie with five counts of wire fraud in violation of 18 U.S.C. § 1343 for
allegedly submitting false advertising expenses to his automobile dealership
clients. 1 The Government and Reggie then engaged in extensive pre-trial
motions practice, 2 and Reggie’s trial was ultimately set for October 20, 2014.
       On October 14, Reggie filed a motion to continue his trial, stating that
he had suffered a stroke on October 6, 2014, spent three days in an intensive
care unit, and remained hospitalized. The motion indicated that Reggie was
unable to assist or prepare for trial with his attorneys, nor could he effectively
testify at trial as planned. Attached was a note from Reggie’s physician,
stating that Reggie suffered from the symptoms of a stroke, was undergoing
physical, occupational, and speech therapy, and that he was “not able to
prepare for or attend any legal proceedings.” The court granted a seven day
continuance and rescheduled the trial for October 27. Reggie’s counsel objected
to the trial date, arguing that Reggie’s ability to testify was not known and
that counsel would not be ready within a week. The district court declined to
change the trial dated unless Reggie’s physician could attest in writing that he




       1The Government also charged Reggie with seven counts of engaging in illegal
monetary transactions in violation of 18 U.S.C. § 1957. In a superseding indictment filed on
February 20, 2014, these charges were dropped such that only the five counts of wire fraud
remained.
       2 In addition to numerous evidentiary motions between the parties, on September 16,
2013, the district court granted Reggie’s motion to designate the case as complex and to
exclude time under the Speedy Trial Act, and granted Reggie a continuance. The district
court granted Reggie another continuance on November 26, 2013. It also denied Reggie’s
motion to dismiss for improper venue on March 13, 2014, and denied Reggie’s motion for
disqualification and recusal on April 25, 2014.
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was suffering from speech issues, cognitive issues, or was physically unable to
be present for trial.
      Reggie filed a subsequent motion on October 22, seeking a continuance
of at least thirty days. Reggie’s motion informed the court that he was to
undergo outpatient surgery on October 22 to place a heart monitor in his chest,
and begin outpatient therapy on October 24. It further stated that Reggie’s
neurological status could only be evaluated in detail after a neurological
consultation scheduled for October 29—two days after the trial was set to
begin—and that the letter attesting to Reggie’s inability to participate at trial
could be provided after this appointment. October 29 was the earliest Reggie
could obtain this neurological assessment because his surgery on October 22
made an assessment that week unviable. The motion also noted that Reggie’s
speech was not yet normal, he was unable to drive, had difficulty reviewing
evidence in preparation for the trial, and that he required assistance with
preparing meals, bathing, getting dressed, and using the restroom. Attached
were exhibits including a medical report showing Reggie’s stroke diagnosis, a
list of prescribed medications related to his stroke, and appointment
confirmations for his scheduled heart surgery and neurological assessment.
      The court denied Reggie’s motion for a thirty-day continuance in an order
entered on October 23. The court observed that the exhibits proffered by
Reggie failed to show that Reggie’s participation at trial would be life
threatening, and failed to address Reggie’s speech, cognitive or physical
limitations as specifically ordered by the court. The court concluded that
defense counsel had five months to prepare for trial and stated perhaps Reggie
could attend his neurological assessment on Halloween, when the court
intended to take a half day off.
      On October 25, Reggie’s counsel informed prosecutors by e-mail that
Reggie would plead guilty to the wire fraud charges two days later, the day the

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trial was scheduled to begin. After being notified of this proposed plea, the
courtroom deputy advised Reggie’s counsel that, “[the district judge] wanted
counsel to be advised that should Mr. Reggie not enter a guilty plea for
whatever reason Monday morning, the jury panel has been placed on stand-by
and the trial will commence.” On the morning of October 27, Reggie went
before the district court and confirmed that he would plead guilty to all five
counts of wire fraud without a plea agreement in place.               The court
acknowledged that Reggie was having difficulty speaking and that his speech
was slow. It then went through a plea colloquy with Reggie. However, the
court failed to specifically ask Reggie about the voluntariness of his plea. It
also did not inform Reggie about his right to counsel, his privilege against self-
incrimination, his right to testify and present evidence at trial, and his right
to compel the attendance of witnesses. At the conclusion of the plea hearing,
Reggie pleaded guilty to all five counts of wire fraud.
      After Reggie replaced his previous defense counsel, he filed a motion to
withdraw his guilty plea with the court on June 2, 2015. Reggie argued that
he was pressured to plead guilty based on his inability to assist in his own
defense without a continuance after he suffered a stroke.            Reggie also
maintained that his plea colloquy with the court was defective, as it varied
from the requirements of Federal Rule of Criminal Procedure 11. Reggie
argued that, in addition to other Rule 11 defects, the court failed to make
inquiries about whether his plea was knowing and voluntary. He attached to
the motion a medical report from his neurologist related to his October 29
neurological assessment, which stated that Reggie was “[u]nable to speak due
to brain lesion.”
      On June 17, 2015, the court held a hearing on the motion to withdraw
the plea, denied the motion, and proceeded to hold Reggie’s sentencing hearing.
In a written ruling, the court explained that based on the questions it had

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asked Reggie during the plea hearing, Reggie had made a knowing and
voluntary decision to plead guilty. It further stated that the Carr 3 factors,
which govern whether to grant a motion to withdraw a guilty plea, strongly
pointed towards denying Reggie’s motion. With respect to defects in the plea
colloquy, the court concluded that the errors were harmless.
      The district court entered a judgment and sentenced Reggie to the high
end of the applicable Guidelines range of 135 months in prison. It also imposed
two years of supervised release, and ordered Reggie to pay restitution in the
amount of $1,217,657.36. Reggie timely appealed.
                                       II. Discussion
      We review challenges to the sufficiency of a plea colloquy de novo. United
States v. Lujano-Perez, 274 F.3d 219, 224 (5th Cir. 2001). “Before accepting a
plea of guilty . . . the court must address the defendant personally in open court
and determine that the plea is voluntary and did not result from force, threats,
or promises. . . .” FED. R. CRIM. P. 11(b)(2). Where, as here, a defendant files
a pre-sentencing motion to withdraw his guilty plea, an error under Rule 11 is
preserved and subject to review under the harmless error standard. See United
States v. Powell, 354 F.3d 362, 367 (5th Cir. 2003). “To determine whether a
Rule 11 error is harmless (i.e., whether the error affects substantial rights), we
focus on whether the defendant’s knowledge and comprehension of the full and
correct information would have been likely to affect his willingness to plead
guilty.” United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993). In other
words, we examine the facts and circumstances of the case to see if the district
court’s flawed compliance with Rule 11 can reasonably be viewed as a material
factor affecting a defendant’s decision to plead guilty. Id. In making this
determination, we “may consult the whole record.” United States v. Vonn, 535



      3   See United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984).
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U.S. 55, 59 (2002).   When a situation presents complexity or doubt as to
whether a plea was voluntary, we will do a more searching inquiry as to
whether Rule 11(b)(2) has been satisfied. See United States v. Henry, 113 F.3d
37, 41 (5th Cir. 1997). The burden rests on the Government to show that a
Rule 11 error was harmless. Vonn, 535 U.S. at 62.
      The Government does not dispute that the district court failed to
specifically ask Reggie about the voluntariness of his plea, but instead claims
that it has met its burden to establish that this violation of Rule 11(b)(2) was
harmless. We disagree.
      The record clearly shows that Reggie suffered a stroke on October 6,
2014, that required him to spend three days in an intensive care unit, and that
his physician confirmed that his medical condition left him unable to prepare
for or attend any legal proceedings. Subsequent medical records submitted to
the district court further established Reggie’s stroke diagnosis, the therapy he
was undergoing as a result of his stroke, as well as his scheduled October 22
heart surgery that would prevent him from undergoing a neurological
assessment until October 29. Nevertheless, on October 23, the district court
denied his motion for a thirty-day continuance and determined that his trial
would commence as scheduled on October 27.
      In this fraud case involving advertising expenses (where numbers are
important), Reggie’s inability to communicate effectively as a result of his
stroke was made apparent during his plea hearing. When asked what the
current date was, Reggie responded “October, two seven”; when asked what
year it was, he responded “one four”; when asked how old he was, Reggie
responded “five three”; and when asked what year he was born, Reggie stated
“six one.” When the district court inquired as to whether Reggie was able to
attend to his own finances, Reggie, a college-educated man, responded with “I
only have my left-hand to push.” When asked if he was able to go through

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normal daily activities, he answered that “with a little help I can bathe. I can
– I go to O.T. [occupational therapy] and I couldn’t put the necktie on, I’m
sorry.” The court also asked Reggie if he knew what wire fraud meant, to which
he responded, “I put the check in the bank and it went out of Louisiana and
then made it fraud.”
       The obvious communication issues exhibited by Reggie during his plea
hearing, buttressed by the medical evidence he provided to the court, helped
substantiate his claims that he was unable to assist in his own defense during
the relevant period and would be unable to effectively testify on his own
behalf. 4 Cf. United States v. Graves, 98 F.3d 258, 261–62 (7th Cir. 1996)
(reversing the conviction of a defendant who suffered a stroke before pleading
guilty because the district court failed to sua sponte order a competency
hearing with testimony from a neurologist under 18 U.S.C. § 4241, and
emphasizing that “[j]udges are not experts in assessing the effects of a stroke
on mental functioning”); United States v. Crosby, 739 F.2d 1542, 1544–46 (11th
Cir. 1984) (remanding for a competency hearing when the district court, even
after a physician testified that defendant suffered from a neurological disorder
and defendant’s counsel expressed an inability to communicate effectively with
the defendant, denied the defendant’s motion for a continuance to undergo
neurological testing). Reggie’s inability to testify on his own behalf or assist in
his own defense was further confirmed by a neurologist’s assessment of Reggie
conducted on October 29 (two days after Reggie pleaded guilty), which stated
that Reggie was “[u]nable to speak due to brain lesion.” Moreover, Reggie’s
communication struggles at the plea hearing stood in marked contrast to his


       4 Cf. Godinez v. Moran, 509 U.S. 389, 391 (1993) (holding that the competency
standard for pleading guilty is the same as the competency standard for standing trial); White
v. United States, 470 F.2d 727, 728 (5th Cir. 1972) (“We have no doubt that the level of
competency required to enter a plea must be at least as high as that required to assist in
defense. . . .”).
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lucidity at the plea withdrawal hearing around seven months later, where
Reggie was able to clearly articulate his thoughts. 5
       While we need not and do not address whether Reggie’s plea was
involuntary or whether a competency hearing was required in this case,
Reggie’s medical condition undoubtedly created a “complex or doubtful . . .
situation” that at least raised questions about the voluntariness of his plea,
requiring a “more searching . . . inquiry” as to whether the requirements of
Rule 11(b)(2) were satisfied. Henry, 113 F.3d at 41. This case is thus unlike
the many harmless error cases where one omission from the Rule 11 colloquy
is clearly inconsequential. See e.g., United States v. Lara-Castro, 561 F. App’x.
346, 349 (5th Cir. 2014) (affirming under plain error review where defendant
was previously advised of his right to counsel).
       The pressure imposed on Reggie to plead guilty by his medical condition
and the denial of the continuance was intensified by the district court’s actions.
Faced with the prospect of going to trial despite his inability to communicate
effectively, Reggie notified the district court that he was planning to plead
guilty. The court responded by stating that “should Mr. Reggie not enter a
guilty plea for whatever reason Monday morning, the jury panel has been
placed on stand-by and the trial will commence.” (emphasis added). We have


       5At the plea withdrawal hearing, Reggie spoke at length about his recollection of the
plea hearing and his recovery:
                     Everyday I have gotten better. And it’s frustrating, but
              you know, the doctors tell [me] and the therapists tell [me] that
              I’m ahead of schedule. It’s just a long schedule, so as I started
              understanding better, you know, what I did and remembering
              actually issues of the courtroom that day and other things, you
              know, [my lawyer] kind of explained to me, “Do you remember
              this? Do you remember that?” I said, “No.” . . .
                     I felt I had a chance at life. I was very concerned that it
              really didn’t matter because I didn’t think that I [was] going to
              speak again. I didn’t think I would walk again without a cane.
              And I’d beat it. I beat the stroke, I mean.

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stressed the important prohibition against any form of judicial participation in
or interference with a defendant’s decision to plead guilty. See United States
v. Rodriguez, 197 F.3d 156, 157–59 (5th Cir. 1999) (vacating a conviction and
sentence when a district court denied a defendant’s request for “more time”
and implied to the defendant that it preferred a guilty plea). The primary
purpose of this bright-line rule is to “diminish[] the possibility of judicial
coercion of a guilty plea, regardless whether the coercion would actually result
in an involuntary guilty plea.” Id. (citation omitted); see also United States v.
Hemphill, 748 F.3d 666, 676 (5th Cir. 2014) (“[O]nce a court has exerted
pressure on a defendant [to accept a plea] it is difficult, if not impossible, to
undo the coercive effects of that pressure.”); United States v. Ayika, 554
F. App’x 302, 309 (5th Cir. 2014) (noting that judicial involvement in a
defendant’s decision to plead guilty “makes it difficult for a judge to objectively
assess the voluntariness of the plea” (quoting FED. R. CRIM. P. 11 advisory
committee’s notes (1974)).
       In this case, Reggie moved to withdraw his guilty plea and thereafter
testified that his medical condition and the district court’s e-mail resulted in
feeling coerced to plead guilty. 6 Cf. Hemphill, 748 F.3d at 674, 675 (noting that




       6 While the dissenting opinion makes much of the fact that Reggie never raised the
issue of voluntariness before or during the plea colloquy, the Supreme Court has stated that
in reviewing for harmless error, we “may consult the whole record.” Vonn, 535 U.S. at 59.
Here, in a written motion to withdraw his guilty plea, Reggie expressly objected on the
grounds that his plea was involuntary and that the plea colloquy was defective under Rule
11(b)(2), thus preserving these errors for appeal. See Powell, 354 F.3d at 367. Moreover, at
the plea withdrawal hearing, Reggie had recovered from his stroke and testified:
                      They said, either plead guilty. I think if I remember
               correctly it was, the jury is in the wing. You plead guilty and ---
               or you go to trial. That’s it. No continuance. And I’m like, you
               know, I just – I can’t take the stand. There’s no way I could do
               what I’m doing today knowing you’re going to ask me all these
               questions. . . .
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the district court’s actions, “done with even the best of intentions, simply went
too far” because they “tended to exert pressure on [the defendant] . . . even if
such belief was only in [the defendant’s] mind”). While we need not and do not
address whether the district court’s e-mail was a violation of Rule 11(c)(1)’s
prohibition on a district court’s participation on plea negotiations, the effect of
the district court’s e-mail on Reggie further underscores the need to comply
scrupulously with Rule 11(b)(2)’s requirements in this case. See Henry, 113
F.3d at 41.
       The combination of these unique and unusual circumstances—Reggie’s
recent stroke and its impact on his ability to assist in his own defense, the
denial of the continuance of the trial, and the e-mail notifying Reggie that if he
did not plead guilty, the trial would begin—convince us that the Government
has not met its burden to show that the Rule 11(b)(2) error was harmless. 7 See
Vonn, 535 U.S. at 62. If the district court had engaged in a proper plea colloquy
regarding voluntariness, Reggie would have had the opportunity to tell the
court that he felt coerced into pleading guilty due to his health condition and
the imminent trial. Therefore, there was at least a “reasonable probability”
that, had Reggie provided this information after a proper Rule 11(b)(2)
colloquy, the district court would not have accepted his guilty plea. See
Hemphill, 748 F.3d at 677. The district court’s flawed compliance with Rule
11 could reasonably be viewed as a material factor affecting Reggie’s decision
to plead guilty, and thus was not harmless error. See Johnson, 1 F.3d at 302.




                     I walked in this courtroom and I would say anything to
              not be able – because I was coerced. I was forced into – because
              you wrote, “the jury would be waiting.”
       7 The dissenting opinion emphasizes the district court’s attempts to ascertain how
much Reggie’s neurological impairment affected his ability to make decisions, but it is
undeniable that, as a general matter, “[j]udges are not experts in assessing the effects of a
stroke on mental functioning.” Graves, 98 F.3d at 262.
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       For the foregoing reasons, we VACATE the district court’s acceptance of
Reggie’s guilty plea, the conviction, and sentence. We REMAND for further
proceedings. 8




       8 As we vacate the judgment on Rule 11(b)(2) grounds, we do not address whether the
district court abused its discretion in denying Reggie’s continuance; whether it abused its
discretion in denying Reggie’s motion to withdraw his guilty plea; whether Reggie’s
substantial rights were affected by the district court’s failure to fully advise Reggie of the
rights he was waiving by pleading guilty; or whether the district court committed any errors
in calculating Reggie’s sentence and restitution. These issues have been mooted by our
vacatur of Reggie’s guilty plea, conviction, and sentence.
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KING, Circuit Judge, dissenting:
      I would affirm Reggie’s guilty plea, conviction, and sentence.
      Specifically, I would find—unlike the majority—that the district court’s
failure to ask Reggie in haec verba about the voluntariness of his guilty plea
during its plea colloquy was harmless. To put the plea colloquy into context,
the district court here was faced with an uncomplicated case involving one
defendant indicted on five counts of wire fraud arising out the same general
scheme. Reggie was originally indicted in August 2013, and his superseding
indictment occurred in February 2014.          However, the district court was
continually faced with delays in setting the trial date. After continuing the
trial date three times over several months—twice on Reggie’s motion—and
setting the trial date for October 20, 2014, the district court granted another
continuance following Reggie’s stroke on October 6 and set a new trial date of
October 27. While the district court was willing to continue the case again if
Reggie provided medical documentation regarding his cognitive or physical
limitations to testify or prepare for trial as a result of his stroke, this evidence
was never presented. Moreover, the medical evidence that the court did have
about Reggie’s condition showed “only minimal restrictions [on his] daily
activities.” Thus, the district court continued to prepare for Reggie’s trial on
October 27, until Reggie indicated that he would plead guilty in court on that
date. At the resulting proceeding on October 27, the district court engaged in
an extended plea colloquy aimed at ascertaining whether Reggie’s plea was
knowing and voluntary in the aftermath of his stroke. And while the district
court did not specifically ask Reggie about the voluntariness of his plea, it
ultimately found, based on Reggie’s answers to its questions, that “[Reggie
was] able to understand and that [he] knowingly and voluntarily entered into
[the] plea.”
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       The majority now asserts that the failure to specifically ask Reggie about
the voluntariness of his plea is not harmless because it should have been
apparent that Reggie’s medical condition prevented him from communicating
effectively, thereby pressuring him into pleading guilty. However, I would find
that this omission is harmless for two reasons. First, neither Reggie nor the
majority suggests how Reggie’s guilty plea would have changed had he been
specifically asked about voluntariness. See United States v. Johnson, 1 F.3d
296, 302 (5th Cir. 1993) (determining harmless error by “focus[ing] on whether
the defendant’s knowledge and comprehension of the full and correct
information would have been likely to affect his willingness to plead guilty”)
(emphasis added). 1
       Second, and more important, the district court record shows that the
failure was harmless. In particular, the record demonstrates that: (1) the
district court engaged in a lengthy plea colloquy where it deliberately asked
Reggie questions to determine whether his plea was knowing and voluntary;
(2) Reggie’s answers at the plea colloquy did not demonstrate a lack of
voluntariness; and (3) Reggie never raised the issue of coercion or
involuntariness prior to or during the plea colloquy. Although the district court
never expressly discussed the voluntariness requirement of Federal Rule of
Criminal Procedure 11(b), it asked a number of questions during the October
27, 2014, plea colloquy that—according to the court—were designed “to make
sure that [Reggie] underst[ood] the nature of [the] proceedings . . . and that [he
was] intelligently and knowingly entering into th[e] plea.”                    Among other



       1 Reggie’s main argument on this point is that, had he been specifically asked about
the voluntariness of his plea, he would have freely told the court that he was pleading guilty
because he did not believe he could testify at trial. However, he still fails to demonstrate how
his guilty plea would have changed had this exchange occurred.
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questions, the district court asked Reggie about his background, his
representation by counsel, the charges against him, whether his medication
interfered with his ability to understand the proceedings, and the extent of his
mental functioning—including his ability to manage his finances.
      During this line of questioning, Reggie’s answers did not demonstrate
that he was pleading involuntarily or that he was unable to comprehend or
testify at the proceeding.           Reggie answered questions regarding his
background, explained the charges against him, responded negatively when
asked if his medications interfered with his ability to understand the
proceedings, and responded affirmatively when asked if he could manage his
financial affairs. 2    The majority asserts that Reggie exhibited “obvious
communication issues . . . during his plea hearing,” but the majority is
improperly inferring this point from a few awkward statements made by
Reggie, rather than looking at the entire record. A full review of the record
shows no statements by any party during the plea colloquy observing or voicing
an objection to any communication issues by Reggie. In fact, Reggie was able
to speak on his own behalf and even objected to part of the government’s factual
basis for his guilty plea during the plea colloquy. Moreover, while the majority
asserts that medical records submitted to the district court should have made
clear Reggie’s inability to testify, the district court repeatedly asked for, but


      2 Although the majority notes Reggie’s statement, “I only had my left-hand to push,”
in response to the court’s questions regarding his finances, it omits the full exchange:

            COURT: Are you able to attend to you own finances since your stroke?
            THE DEFENDANT: I only have my left-hand to push.
            COURT: Okay. But you are – if you have somebody to assist you, you
      can understand your checkbook and your balance and you can pay your bills
      and that kind of thing?
            THE DEFENDANT: Yes.

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never received, medical evidence regarding Reggie’s cognitive or physical
limitations to testify or prepare for trial. 3
       Although Reggie now argues that he felt coerced to plead guilty because
of his medical condition, this was never raised before or during the plea
colloquy. 4 See United States v. Guichard, 779 F.2d 1139, 1146 (5th Cir. 1986)
(finding that voluntariness was not undermined because “the record
contain[ed] no hint of any coercion”). The majority, for its part, now suggests
another form of coercion in that the district court may have pressured Reggie
to plead guilty by informing him, via e-mail, that the trial would commence on
October 27, 2014, if he did not plead guilty that day.                        The majority
mischaracterizes the e-mail and its context. The district court informed Reggie
that a jury would be on stand-by and the trial would commence on October 27,
because the actual trial had been rescheduled for October 27. Far from a form
of judicial coercion or pressure, the district court was informing Reggie that
the trial would continue as originally planned if he did not plead guilty. In
fact, in light of the numerous delays involving the trial date, it appears that
the district court was attempting to set a definite trial date after Reggie failed
to provide medical evidence to justify another continuance.



       3  Although Reggie submitted records establishing his stroke diagnosis and evidence
of subsequent appointments, the district court, as early as October 9, 2014, specifically asked
for medical evidence of his ability to be present for trial that Reggie never proffered.
Furthermore, the district court, when examining the evidence Reggie presented, noted that
no records or reports clarified that Reggie’s participation at trial would be life threatening.
While the majority states that Reggie’s inability to testify or assist in his own defense was
confirmed by a neurologist’s assessment that Reggie was “[u]nable to speak due to brain
lesion,” this assessment was made on October 29, 2014, and was never presented to the
district court during or prior to the plea colloquy on October 27.
        4 As the majority recognizes, Reggie only argued that he felt coerced to plead guilty

when he moved to withdraw his guilty plea—a motion filed seven months after Reggie
initially pleaded guilty.
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      Notably, this court has held that “[t]he fact that [a district] court did not
expressly use the precise word ‘voluntary’ when addressing [a defendant] does
not render the [Rule 11] proceedings insufficient.” Guichard, 779 F.2d at 1145.
Instead, this court has looked to whether “the record shows that [a district]
court ascertained from [the defendant] that the plea was in substance
voluntary.” Id. “For a plea to be knowing and voluntary, ‘the defendant must
be advised of and understand the consequences of the [guilty] plea.’” United
States v. Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992) (alteration in original)
(quoting United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990)).
      Given the record, I would conclude that the district court’s failure to
specifically ask Reggie in haec verba about voluntariness was harmless. The
district court engaged in a detailed plea colloquy with Reggie aimed at
determining whether he was pleading knowingly and voluntarily, and it
appropriately concluded that Reggie’s guilty plea met both requirements. I
therefore would not second guess the district court’s fact-bound conclusion on
appellate review. I respectfully dissent.




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