                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 15-4082


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN ADAM RILLO,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00341-WO-1)


Submitted:   October 20, 2016           Decided:   November 16, 2016


Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Cheryl D. Andrews, HOLTON LAW FIRM, PLLC, Winston-Salem, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Clifton Thomas Barrett, Michael Francis Joseph, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             John Rillo (“Appellant”) appeals his convictions for

possession    of   pseudoephedrine         with    the    intent    to     manufacture

methamphetamine and possession of firearms in furtherance of a

drug trafficking crime, and his resulting sentence.                         Appellant

claims the district court erred in, inter alia, impermissibly

interfering with plea discussions and failing to depart downward

in reaching his sentence.         Finding no error, we affirm.

                                        I.

             On June 30, 2014, a grand jury in the Middle District

of   North    Carolina     returned    a       four-count       indictment     against

Appellant,     which      included     three        counts       related      to   the

manufacture       of    methamphetamine,          and     one     count      involving

possession of stolen firearms.                 On August 27, 2014, Appellant’s

original counsel filed a motion to withdraw from representation

based   on     Appellant’s      repeatedly-expressed              desire     for   new

counsel.     The district court held a hearing on the motion on

September    3.        During   that   hearing,         Appellant    expressed     his

concerns that his attorney was “openly discussing [his] case

with the district attorney without [his] permission.”                        J.A. 17. 1

He also explained that his attorney had asked Appellant if he



        1 Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.



                                           2
would be willing to provide information about other individuals

to the Government.

               The district court then asked a series of questions

about the concept of substantial assistance.                           The court asked

questions such as, “During your time in custody, have you ever

heard the term ‘substantial assistance’?” and “Nobody in jail

has ever said a word to you about cooperating . . . [w]ith the

Government, substantial assistance, departure, 5K[?]                               You ever

heard any of those?”               J.A. 21-23.          Appellant answered that he

had heard the terms but did not know what they meant.                             The court

then    asked      defense       counsel,    “[H]as       the   Government        asked    if

[Appellant]        would    be     interested      in    cooperating,        or    have    you

explored that?” to which counsel replied, “I have, Your Honor,

and I’ve shared that with [Appellant].”                    Id. at 24.

               The district court then pondered whether to relieve

counsel       of   representation,         stating       that   some    of     Appellant’s

statements conflicted with one another: for example, Appellant

said he did not review discovery materials but did read a police

report;     and      Appellant      told    the    court    “the      district     attorney

wants    to    know    if    [I]    know    anything       about      stolen      guns    [or]

breaking       and    enterings,”      but        he    nonetheless     “d[id]n’t         know

anything about substantial assistance.”                     J.A. 18, 24.          The court

found his statements, especially about substantial assistance,

“to    be   almost     inherently      unreliable.”             Id.    at    24-25.        The

                                              3
Government      attorney      then     explained         he     “was     interested     in

[Appellant’s] cooperation,” but “apparently he’s not interested

in cooperating.        That’s fine with me.            That’s the end of that as

far as I’m concerned.”             Id. at 25.      But the attorney admitted he

and defense counsel had “productive conversations about . . .

what might be beneficial to [Appellant].”                     Id. at 26.

           In       ultimately      deciding      to   relieve         counsel    of    his

representation,        the    district       court       stated,       “It’s     kind   of

inconceivable to me because . . . I don’t think I’ve ever seen a

case   where    a    lawyer   didn’t       introduce      questions       about    others

related   to    whether       or    not    you    want     to    pursue     substantial

assistance.       [N]othing makes any sense if you don’t.”                       J.A. 28.

The    district      court    ultimately         granted      counsel’s        motion    to

withdraw because of Appellant’s “obstruction with respect to the

relationship between counsel and defendant.”                     Id.

           Less       than    a    month    after      that      hearing,      with     the

assistance of new counsel, Appellant pled guilty to a two-count

Information charging him with possession of a List I chemical

(pseudoephedrine) with the intent to manufacture methamphetamine

(“Count One”); and possession of firearms in furtherance of a

drug trafficking crime (“Count Two”).                    At the plea hearing, the

district court conducted a plea colloquy during which Appellant

did not attempt to withdraw his plea and did not claim he was

pleading guilty under any duress or coercion.                          To the contrary,

                                            4
Appellant indicated that no one had “in any way attempted to

force [him] to plead guilty against [his] wishes,” and he was

“fully    satisfied”        with     his    new     counsel’s     representation        and

advice.    J.A. 58, 53.

               On   December       19,    2014,    the   district      court    held    the

sentencing hearing.            The presentence report (“PSR”) calculated

Appellant’s criminal history at category V and his total offense

level     at    19,    for     a     United        States     Sentencing       Guidelines

(“Guidelines”) range of 57-71 months on Count One.                         The PSR also

indicated that Count Two carried a mandatory consecutive minimum

term of five years. 2          Appellant’s counsel argued for a downward

departure      on   Count     One,       noting,    “[T]he     Court    does    have    the

authority to depart downward when a person’s criminal history

category       overstates     the        seriousness     of    their    prior    criminal

history activity.”            J.A. 80-81.          She explained, “[T]he bulk of

[Appellant’s        crimes]    are       traffic    violations     which    .   .   .   now

under North Carolina State law . . . have been demoted in the

seriousness of their . . . nature.”                           Id. at 81.        She also

explained       that    Appellant’s           history       did   not      match    other

defendants with category V criminal histories.                         In the end, she

urged the district court to depart downward and assign Appellant



     2 The Government did not move for a downward adjustment of
Appellant’s offense level based on substantial assistance.



                                              5
to a criminal history category III, which would have resulted in

a   Guidelines          range       of     37-46    months        of    imprisonment.                  The

Government         also      advised        the    court    it     had      no        evidence        that

Appellant              had       been        distributing              methamphetamine                  or

pseudoephedrine in the area, and Appellant’s name had never been

mentioned        by     other       methamphetamine         users       and       sellers       in     the

area.

                 The       district       court     declined           to    depart           downward,

however,         explaining,         “[A]lthough       recognizing            my       authority        to

depart      .     .    .     I   don’t      find    that     a    criminal             history        five

overstates the seriousness of [Appellant’s] criminal conduct.”

J.A.       91.         It    then        sentenced     Appellant            to        57     months     of

imprisonment on Count One and to a consecutive 60 months of

imprisonment on Count Two.

                 Appellant          filed    a     timely        notice          of        appeal,    and

numerous formal and informal briefs.                             We focus on two of the

main issues raised in these briefs: whether the district court

impermissibly interfered with plea discussions in contravention

of Federal Rule of Civil Procedure 11(c)(1) and United States v.

Davila,         133    S.     Ct.    2139     (2013);       and    whether             it     erred     in

declining to depart downward in sentencing Appellant. 3


       3
       We have considered each of the remaining issues raised by
Appellant, but we find them to fall outside the scope of our
review or to be without merit.


                                                   6
                                             II.

              We     first     address         whether       the      district        court

impermissibly         interfered           with     plea     discussions         in     its

explanation of and questions about substantial assistance during

the    motion-to-withdraw           hearing.         Because    Appellant       did     not

object to the district court’s questioning at the hearing, we

review his claim for plain error.                  See United States v. Bradley,

455    F.3d   453,    462    (4th    Cir.     2006).        Under   the   plain       error

standard, Appellant must show “(1) there was an error; (2) the

error is plain; and (3) the error affects substantial rights.

We may then exercise our discretion to correct the error if it

seriously affects the fairness, integrity or public reputation

of judicial proceedings.”             United States v. White, --- F.3d ---,

2016 WL 4717943, at *6 (4th Cir. Sept. 9, 2016) (citations and

internal quotation marks omitted).

              Appellant      claims        that     by     discussing     “substantial

assistance,”       the    district     court       was    “coercing    [Appellant]       to

provide [] help [to] both his Attorney, and the Government . . .

thus    seeking    information        on    other    so    called     local    cases,    in

their    hopes     that     [Appellant]       would      cooperate.”          Appellant’s

Informal Br. 2, United States v. Rillo, No. 15-4082 (4th Cir.

Feb. 13, 2015; filed Oct. 19, 2015), ECF No. 19.                                Appellant

believes the court “instill[ed] fear in him . . . in [his]

choice to plead or go to trial”; the Government “used the ‘haze’

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of    coercion     and    fear          to   its[]     advantage       .    .    .    to       further

compound [Appellant’s] heightened-intimidation, to poke him to

plead”; and the court and Government “act[ed] in a colluded, or

concerted effort to coerce or scare [Appellant] into seeking

substantial assistance.”                 Id. at 2, 4.

              The rules of criminal procedure provide, “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.”                           Fed. R. Crim. P. 11(c)(1)

(emphasis      supplied).               “Nothing       in    Rule    11’s       text,      however,

indicates      that      the       ban       on    judicial          involvement           in       plea

discussions,       if    dishonored,           demands        automatic         vacatur        of    the

plea   without     regard          to    case-specific         circumstances.”                  United

States v. Davila, 133 S. Ct. 2139, 2148                          (2013).         On this point,

“particular facts and circumstances matter.”                           Id. at 2149.

              In analyzing whether a court impermissibly interfered

with plea discussions, we look to “judicial comments” and other

indicia of involvement, such as whether the court influenced or

“initiated plea discussions.”                      Bradley, 455 F.3d at 462.                          We

will    not    find      reversible            error        unless    “it       was       reasonably

probable that, but for the [court’s participation], [Appellant]

would have exercised his right to go to trial.”                                       Davila, 133

S. Ct. at 2150.            In answering that question, we look to the



                                                   8
court’s comments “not in isolation, but in light of the full

record.”       Id.

               Taking the hearing as a whole, we fail to see how the

court’s       comments      could    be       construed       as       interference          in    or

initiation of plea discussions.                     For one thing, the hearing was

not a plea hearing, but a motion-to-withdraw hearing, and the

court’s       focus    remained     on     the       quality       of    representation            of

defense       counsel.           Indeed,       the     comments         about        substantial

assistance were not to urge Appellant to provide such assistance

in contemplation of a plea, but to ascertain whether his counsel

explained what it was and how it could help him.                                      The court

never told Appellant he should provide substantial assistance to

the Government, or that he would get a higher sentence if he did

not do so.

               This case is markedly different from others where this

court     has     found     impermissible            interference             with     the    plea

process.       See, e.g., United States v. Braxton, 784 F.3d 240, 242

(4th Cir. 2015) (Rule 11 error where district court “repeatedly

spoke in favor of the plea agreement, opining that it would be

best    for     [the    defendant]       to    take    the     government’s           offer       and

forgo trial”); United States v. Sanya, 774 F.3d 812, 816 (4th

Cir.    2014)     (Rule     11   error     where,      before          plea    deal    had        been

struck,       district      court    repeated          that        a    plea     was     in       the

defendant’s          best   interest,         strongly    suggested            the     defendant

                                                9
would receive a more favorable sentence if he pled guilty, and

commented on the strength of the Government’s case); Bradley,

455   F.3d      at   462    (Rule    11   error    where     the   district    court

“initiated plea discussions, advised the Defendants that they

might     ‘be    better      off    pleading      to   the   indictment,’      [and]

suggested that they would likely receive life sentences if they

went to trial”).           In fact, in the case at hand there was no plea

deal even on the table; the Government admitted Appellant’s lack

of interest in cooperating was “the end of that.”                     J.A. 25; cf.

United States v. Bierd, 217 F.3d 15, 21 (1st Cir. 2000) (no

error where the remarks of the court did not take place in the

context    of    plea      negotiation    discussions,       but   rather,    in   the

context of a motion for severance).

             Rather, this case is more akin to situations in which

the reviewing court “f[ou]nd nothing coercive about the district

judge’s comments.”           United States v. Cannady, 283 F.3d 641, 642,

645 (4th Cir. 2002) (no Rule 11 error where, after defendant and

the Government had reached a plea agreement, defendant began to

“reopen the negotiation process” at the plea hearing regarding

his waiver of collateral review and the court stated, “I’m not

going to waste time by taking a guilty plea and then having him

file a 2255 . . . .            [E]ither he decides to waive the 2255, or

we are going to go to trial”); United States v. Telemaque, 244

F.3d 1247, 1248-49 (11th Cir. 2001) (per curiam) (no Rule 11

                                          10
error   where        defendant       expressed             dissatisfaction          with    his

attorney     for        not   mentioning            the     possibility       of     sentence

reduction    for     acceptance      of    responsibility,             and    the    district

court “then pointed out . . . that the offense-level reduction

was up to the court and as yet undecided”); Bierd, 217 F.3d at

21 (holding that court’s mention of a guilty plea and acceptance

of responsibility to defense counsel was not reversible error);

see also United States v. Frank, 36 F.3d 898, 903 (9th Cir.

1994)   (Rule      11    “does     not    establish          a     series    of    traps    for

imperfectly articulated oral remarks.”).

            For these reasons, the district court did not err, let

alone   plainly      err,     in   its    questioning            and   commentary     at    the

motion-to-withdraw hearing.

                                           III.

            Appellant         also   claims         the     district       court    erred    in

failing to depart downward when sentencing him.                              However, “[a]

district    court’s       decision       not    to        depart    from    the    Sentencing

Guidelines      is      not    reviewable           unless       the    court      mistakenly

believed that it lacked authority to depart.”                              United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007) (internal quotation

marks omitted).           The sentencing transcript is clear that the

district court knew it had the authority to depart, but decided

not to do so.        Therefore, this issue is unreviewable.



                                               11
                                  IV.

          For   the   foregoing   reasons,   the   judgment    of   the

district court is

                                                              AFFIRMED.




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