    Case: 16-50960   Document: 00514340572      Page: 1   Date Filed: 02/07/2018




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

                                No. 16-50960
                                                                       Fifth Circuit

                                                                     FILED
                                                                 February 7, 2018
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                           Plaintiff–Appellee,

versus

ANTHONY DRAPER,

                                           Defendant–Appellant.




               Appeals from the United States District Court
                     for the Western District of Texas




Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      For the first time on appeal, Anthony Draper claims that the magistrate
judge (“MJ”) participated in plea negotiations in violation of Federal Rule of
Criminal Procedure 11(c)(1). Because any error was not clear or obvious, we
affirm.

                                      I.
      Draper was indicted for conspiring to possess with intent to distribute
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                                No. 16-50960
280 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A) and 846. He retained his own counsel, Dan Wade.

      Initial plea negotiations failed. Based on representations at the plea
hearing, it appears that Wade proposed a 120-month sentence, but the govern-
ment rejected that offer. Instead, the government proposed a plea agreement
that waived Draper’s appellate rights and stipulated to a factual basis, in
exchange for a one-point reduction in the offense level under U.S.S.G.
§ 3E.1(b). Wade determined the agreement was not in Draper’s interest, iden-
tifying three defects: (1) The agreement waived Draper’s appellate rights,
which Wade considered “essential”; (2) it required Draper to stipulate to the
offense as charged, without limiting his relevant conduct; and (3) it did not
commit the government to allocuting at any particular sentence or range. The
agreement committed the government only to the one-point reduction.

      Draper consented to administration of his guilty plea and Rule 11
allocution by the MJ and appeared before the MJ to enter a guilty plea. At the
plea hearing, Wade conveyed Draper’s intent to plead straight up to the
indictment. The MJ asked whether Wade had “conveyed any and all formal
plea offers from the government to Mr. Draper.” Wade answered affirmatively.
The prosecutor then noted that the government had proposed an agreement.
Wade agreed that that proposal had been received and rejected. When the MJ
asked Draper whether that was correct, Draper initially conferred with Wade
before saying “Yes.” But, after the MJ clarified that he was asking whether
that offer had been communicated and rejected, Draper responded that plead-
ing straight up was “the only plea [he’d] ever known about” and that he was
not aware a plea offer had been made.

      The MJ then asked some questions to ascertain whether Draper had
been aware of the government’s proposal. Draper stated, “No offer. No, sir.”

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                                     No. 16-50960
Wade explained why the agreement was not in Draper’s interest and stated
that Draper rejected it “[o]nce he realized that he was giving up his right to
appeal.” 1 Draper agreed that, even if he had not known about the offer before-
hand, based on Wade’s explanation, he “kn[e]w about it” now. The MJ said he
would “still let” Draper accept the offer if Draper so desired. But Draper, after
consulting with Wade, formally rejected it.

      The MJ began to move on with the plea colloquy, but Draper interrupted
to say “[j]ust it was a misunderstanding right then. I didn’t know.” The MJ
renewed his attempts to ensure Draper understood the offer and to ascertain
whether Draper was rejecting it. Draper interrupted again: “May I ask the
Court a question?” Draper asked: “If I may ask the prosecution through the
Court what is the offer that they have, like, as of right now besides me signing
just the Factual Basis and stuff decide [sic] that I understand, if I may. You
see what I’m saying?”

      The MJ asked whether the prosecutor, Ms. Young, would “like to speak
to that.” She replied, “I don’t know that I can help anything, but the offer is
plead with the Plea Agreement . . . . My understanding is that’s been rejected,
correct? You don’t want to sign a Plea Agreement, correct?” Wade then chimed
in: “He doesn’t want to waive his right to appeal. So, yes, he doesn’t want to
sign it.” Then the following exchange occurred:

       MS. YOUNG: Well, let’s let Mr. Draper answer so we actually have
       something on the record.
       THE COURT: Mr. Draper, so they made you an offer as to the
       written agreement that she’s holding in her hand. It includes a
       waiver of your right to appeal, I’m sure. Is that right, Ms. Young?
       MS. YOUNG: That is correct as well as other mechanisms that you


      1After hearing Wade’s explanation, Draper stated, “I didn’t know that the Plea Agree-
ment was rejected, Judge. . . . I didn’t even─I didn’t know that.”
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                                  No. 16-50960
      could agree with the government to do things that would be bene-
      ficial to you should you choose to do it. And you’re rejecting that
      offer, correct?
      THE DEFENDANT: No, ma’am.
      THE COURT: You want that offer[?]
      THE DEFENDANT: Yeah.
      THE COURT: Okay. Let’s take a break and have a seat and let
      Mr. Wade go through that with you.
      When the recess ended, Draper, Wade, and Young had signed the gov-
ernment’s proposed plea agreement. The rest of the plea hearing concluded
without incident. The MJ recommended that the district court accept the plea
agreement and plea of guilty and that Draper be adjudged guilty of conspiracy
to possess with intent to distribute crack cocaine in violation of 18 U.S.C. § 846.
The district court adopted the MJ’s findings of fact and recommendation and
accepted the guilty plea.

      The Presentence Report (“PSR”) found Draper a career offender under
U.S.S.G. § 4B1.1. It identified three “prior felony convictions of either a crime
of violence or a controlled substance offense”: (1) burglary; (2) possession of a
controlled substance with intent to distribute; and (3) delivery of a controlled
substance. The career-offender status increased the offense level to 37 2 and
the guideline range to 262–327 months. The district court adopted the PSR
without objection and sentenced Draper to 262 months.

      Draper believes that the district court erred by labeling him a career
offender; because of his waiver of appeal, however, he cannot appeal that
alleged error directly.     On appeal, he now claims that the district court
participated in plea discussions in violation of Rule 11(c)(1). Thus, he requests



      2Draper ultimately ended up with an offense level of 34 because the PSR recom-
mended a three-point reduction for acceptance of responsibility.
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                                       No. 16-50960
that we vacate the conviction.

                                              II.
       The government contends that the appellate waiver bars this appeal.
Draper responds that the waiver was not made voluntarily and knowingly and
should not be enforced. Because the merits of Draper’s Rule 11 objection
implicate the validity of the waiver, we pretermit consideration of the waiver. 3

       Draper did not object to the MJ’s statements in the district court, so we
review for plain error. To prevail, Draper must show (1) error (2) that is clear
or obvious and (3) that affects his substantial rights. United States v. Jones,
873 F.3d 482, 497 (5th Cir. 2017). “Even then, the court may correct the error
‘only if the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.’” 4 Draper has not shown clear or obvious error, so his
appeal fails.

       Rule 11(c)(1) provides, “An attorney for the government and the defen-
dant’s attorney . . . may discuss and reach a plea agreement. The court must
not participate in these discussions.” We take that prohibition seriously. It “is
a ‘bright line rule’” that “constitutes ‘an absolute prohibition on all forms of
judicial participation in or interference with the plea negotiation process.’” 5 In



       3 See United States v. Story, 439 F.3d 226, 230 (5th Cir. 2006) (stating that appeal
waivers are not jurisdictional); see also United States v. Harrison, 777 F.3d 227, 233 (5th Cir.
2015) (“Although Harrison’s plea agreement contains an unambiguous waiver of his right to
appeal from his conviction and sentence, he alleges that his ratification of the plea agreement
was involuntary due to its coercive nature . . . . [W]e have previously allowed appeals despite
similar waivers of appeal where defendants have asserted claims of coercion . . . .”); United
States v. Rodriguez, 197 F.3d 156, 159 (5th Cir. 1999) (“[P]ressure is inherent in any involve-
ment by a judge in the plea negotiation process.”).
       4 Id. (alteration removed) (quoting United States v. Moreno, 857 F.3d 723, 727 (5th
Cir. 2017)).
       5 United States v. Hemphill, 748 F.3d 666, 672 (5th Cir. 2014) (quoting United States
v. Pena, 720 F.3d 561, 570 (5th Cir. 2013)).
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                                        No. 16-50960
short, “the unambiguous mandate of Rule 11 prohibits the participation of the
judge in plea negotiations under any circumstances: it is a rule that admits of
no exceptions.” 6 That strict prohibition “serves to diminish the possibility of
judicial coercion of a guilty plea,” id., as “pressure is inherent in any involve-
ment by a judge in the plea negotiation process.” 7

      Draper claims that the MJ’s repeated questioning about whether Draper
was aware of the proffered agreement, and the MJ’s explanation of the agree-
ment, violated Rule 11’s prohibition on participation. Though we have “re-
ject[ed] the narrow view” that improper participation “is limited to the several
discrete categories of factual circumstances where the courts have previously
found it,” Rodriguez, 197 F.3d at 159, our caselaw does provide some guidance.

      For instance, judges clearly violate Rule 11(c)(1) where their statements
could be construed as predictive of the defendant’s criminal-justice outcome;
suggestive of the best or preferred course of action for the defendant; or indic-
ative of the judge’s views as to guilt. See United States v. Ayika, 554 F. App’x
302, 305 (5th Cir. 2014) (per curiam) (collecting examples). Conversely, it is
clear that a judge does not violate the rule where performing the duties man-
dated by Rule 11(b). See, e.g., Miles, 10 F.3d at 1140. That is, once the defen-
dant has agreed to plead guilty,
      the district court is expected to take an active role by, inter alia,
      addressing the defendant in open court; determining that the plea
      is voluntary and not the result of force or threats; ensuring that
      there is a factual basis for the plea; and either accepting or
      rejecting the plea and stating its reasons for doing so.
Hemphill, 748 F.3d at 673. 8 Thus, where evaluating an objection to improper


      6 United States v. Miles, 10 F.3d 1135, 1139 (5th Cir. 1993) (alteration, quotation
marks, and citation omitted).
      7   Rodriguez, 197 F.3d at 159 (citing Miles, 10 F.3d at 1135).
      8   The caselaw describes the court’s “active role” as being triggered when the defendant
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                                       No. 16-50960
judicial participation, “[t]he proper inquiry is whether the court was actively
evaluating a [defendant’s decision to plead guilty], as the court is required to
do, rather than suggesting what should occur or injecting comments while the
parties are still negotiating.” Id. 9

       The government contends that there is a second category of per se per-
missible judicial questioning under Missouri v. Frye, 566 U.S. 134 (2012), and
Lafler v. Cooper, 566 U.S. 156 (2012). Those cases “held that defendants could
have viable claims for ineffective assistance [‘IAC’] if their counsel fails to
communicate a plea offer and the defendant thereby loses the opportunity to
plead to less serious charges or to receive a less serious sentence.” Hemphill,
748 F.3d at 675. Though these holdings do not formally intersect the universe
of Rule 11, dicta in Frye appears to encourage the use of Rule 11 plea colloquies
to confirm that formal offers have been conveyed:
       [T]rial courts may adopt some measures to help ensure against
       late, frivolous, or fabricated [IAC] claims . . . . [For example], for-
       mal offers can be made part of the record at any subsequent plea
       proceeding or before a trial on the merits, all to ensure that a de-
       fendant has been fully advised before those further proceedings
       commence.
Frye, 566 U.S. at 146. 10 According to the government, that language authorizes



“has agreed to accept a plea offer.” Hemphill, 748 F.3d at 673; accord, e.g., Miles, 10 F.3d
at 1140. That phrasing is imprecise. The triggering event is the defendant’s decision to enter
a guilty plea—whether with an agreement or not. See FED. R. CRIM. P. 11(b) (procedure for
accepting pleas); cf. FED. R. CRIM. P. 11(c) (procedure for accepting plea agreements). That
distinction is typically unimportant. It matters only in unusual cases, like this one, in which
the government’s proposed agreement is so unfavorable to the defendant that he would rather
plead “straight up” to the indictment than accept it.
       9See also, e.g., Rodriguez, 197 F.3d at 160 (“Appropriate discussion of a [decision to
plead guilty] is limited to exploration of the agreement in order to determine whether it is
voluntary and just.”).
       10See also Frye, 566 U.S. at 142 (“At the plea entry proceedings the trial court and all
counsel have the opportunity to establish on the record that the defendant understands the
process that led to any offer . . . .” (citing FED. R. CRIM. P. 11)).
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                                       No. 16-50960
judges administering plea colloquies to perform a “Frye inquiry,” in which the
court inquires into whether defense counsel has delivered all formal plea
offers—even though such inquiries go beyond the requirements of Rule 11(b)
and have not traditionally been considered part of the district court’s “active
role.” See Miles, 10 F.3d at 1140.

       The one Fifth Circuit case to confront the issue, Hemphill, 748 F.3d
at 675, is of limited use here. The panel assumed, without deciding, that Frye
inquiries are proper; it found error anyway because the judge’s comments
“went much farther than documenting the plea offer or informing [the defen-
dant] of its terms, as contemplated in Frye.” Id. Thus, the issue here―a judi-
cial statement that conforms to Frye, but otherwise exceeds the bounds of Rule
11(b)―remains open. 11

       We agree with the government that Frye’s dicta seems to authorize some
type of inquiry.       But we recognize that authorization is in tension with
Rule 11’s prohibition on participation. Even assuming the Supreme Court
would not ultimately authorize that inquiry such that the MJ’s actions were
erroneous, the dicta in Frye is enough to establish that there was no clear error
here. See Frye, 566 U.S. at 146.

       And, unlike in Hemphill, the MJ’s inquiries did not stray outside Frye’s
authorization. 12 The MJ’s initial questions as to whether Wade had commun-
icated all formal plea offers to Draper—including the offer to allow Draper to



       11But cf. United States v. Wiggins, 674 F. App’x 396, 400 (5th Cir. 2017) (per curiam)
(suggesting that “the best practice under these circumstances would have been to ask [the
defendant] to confer with his counsel to ensure that he understood the plea offer,” but
ultimately deciding the case on prejudice grounds, rather than the merits).
       12 See Hemphill, 748 F.3d at 675 (“The district court clearly implied that a plea would
be preferred.”); see also United States v. Braxton, 784 F.3d 240, 245–47 (4th Cir. 2015) (find-
ing that the district court’s advice to defendant encouraging him to accept the guilty plea fell
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                                       No. 16-50960
plead with a written agreement, and whether Draper agreed that he knew of
all plea agreements―seem to exhibit a fairly standard Frye inquiry. Draper
claims the MJ strayed from that inquiry when, after receiving affirmative
answers to both questions, he explained that Draper had the right to know
about all plea offers, and he reframed his question to Draper: “[I]nstead of
taking that formal offer of entering a written Plea Agreement or even a written
Factual Basis, [you’ve chosen] to plead to the indictment . . . without an agree-
ment, right?”

       Though we agree that sustained, unjustified repetition of the Frye
inquiry could exceed the scope of Frye and would become improper involve-
ment, 13 the rule cannot require parsing the transcript so finely. To the extent
Frye permits judges to engage in that type of inquiry, it must also allow them
to ask reasonable follow-up questions and probe the parties’ responses. Other-
wise, a judge would not be able to probe an ambiguous or unclear answer. And
the answer Draper gave to the initial question of whether the plea had been
communicated was arguably ambiguous. 14

       After being asked to clarify that he was rejecting the offer, Draper
answered, “That’s the only plea I’ve known about, actually.” That response
appeared to contradict Wade’s earlier representation that he had conveyed the
plea-agreement offer to Draper. Thus, the MJ tried to confirm that Draper did


outside Frye’s permitted inquiry and thus was impermissible participation).
       13 Cf. Rodriguez, 197 F.3d at 159 (pointing out that “when Rodriguez indicated that
he might want to go to trial, [the judge] asked whether he was ‘sure [he] want[ed] to do that’”;
that statement was by itself sufficient to constitute improper judicial participation).
       14 Before Draper answered whether all pleas had been communicated, the prosecutor
interjected “to make the record clear” that “[t]here was an offer . . . but he rejected” it. The
MJ then asked Wade whether that was right, and he said yes. When the MJ asked Draper
whether that was right, Draper conferred with his counsel and then said, “Yes, sir.” Only
then did the MJ seek to clarify that two-word answer to ensure not only had Wade com-
municated the offer but also that Draper had rejected it.
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                                    No. 16-50960
not know about the plea offer, and the MJ sought Wade’s views.                  Wade
explained that he had conveyed the offer to Draper but that Draper had
rejected it because (1) it gave up his appeal rights, which he regarded as
“essential,” (2) did nothing to limit his relevant conduct at sentencing, and
(3) suggested no sentencing range.

      Draper still maintained he had never before heard the terms of that plea
agreement. Draper now urges that the MJ used this exchange improperly to
“dr[a]w the parties into a discussion of plea agreement offers and terms.” But
the MJ was merely performing his task under Frye, 566 U.S. at 146—namely,
“ma[king] [formal offers] part of the record at a[] subsequent plea proceed-
ing . . . to ensure that a defendant has been fully advised before those further
proceedings commence,” and it was not clear or obvious error to do so. A Frye
inquiry is precisely concerned with ensuring the defendant knows of all plea
offers, so that when a defendant claims, on the record, that he did not know
about an offer, the judge is permitted to ask whether the offer was actually
communicated, so long as the inquiry does not imply that the judge has an
opinion about the propriety of taking the offer.

      The closest the MJ arguably comes to crossing the boundaries of Frye is
his statement in response to Draper’s maintaining no knowledge of the agree-
ment: “If you would like to enter the written Plea Agreement, you can still do
it. If the government will still offer it, I’ll still let you do it.” (emphasis added).
Draper urges that this statement violated “the plain words” of Rule 11—that
is, constituted “participation” in the plea-agreement discussions. That view
has intuitive appeal. At this point, the plea negotiations between Wade and
the prosecutor were over. With that statement, however, the MJ resurrected
the discussion, putting the rejected offer back onto the table.

      It is in this statement that the tension between Rule 11 and a Frye

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                                       No. 16-50960
inquiry is most evident. A revival of the plea discussions arguably involves
“participating” in discussions as that word is ordinarily understood. 15 But that
alleged participation cannot be clear or obvious error in light of Frye, 566 U.S.
at 146, which authorizes district courts to “ma[k]e [formal offers] part of the
record” so as to “ensure against” IAC claims based on counsel’s failure to
deliver an offer. The MJ reasonably believed he had uncovered an actual fail-
ure to deliver. How could it have been clear or obvious error for him to attempt
to correct the IAC by “still let[ting]” Draper accept the late-delivered offer? On
Draper’s view, Frye permits district judges to identify IAC but not to remedy
it. That is not what the Supreme Court meant or said. 16

       After the MJ indicated that Draper could accept the plea if Draper
desired, the defendant conferred with counsel and then explicitly rejected it.
Satisfied, the MJ moved on with the plea colloquy and ended the Frye inquiry.
But, without warning or apparent explanation, Draper interrupted to say the
earlier Frye discussion had been “a misunderstanding.” It is unclear what
Draper meant.

       The MJ then explained his understanding of how the government had
proposed a written agreement and how Draper had rejected it. The MJ spent
several minutes trying to nail down (again) whether Draper understood and
rejected the agreement. Upon Draper’s request, the MJ asked the prosecutor
to describe the undelivered offer again. The prosecutor demurred, saying only



       15 Cf. United States v. Bradley, 455 F.3d 453, 462 (4th Cir. 2006) (explaining that the
court “participated” in plea discussions by, among other things, “initiat[ing]” them); United
States v. Tobin, 676 F.3d 1264, 1307 (11th Cir. 2012) (stating that the court “participated” by
“indicat[ing] that it would like the defendants to begin and engage in plea discussions”),
abrogated on other grounds by United States v. Davila, 569 U.S. 597 (2013).
       16See Frye, 566 U.S. at 142 (approving use of plea hearings to ensure “the defendant
has been given proper advice or, if the advice received appears to have been inadequate, to
remedy that deficiency before the plea is accepted” (emphasis added)).
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                                      No. 16-50960
that the offer “is to plead with the Plea Agreement.” The prosecutor then asked
Draper whether he was still rejecting that offer, and Wade answered that
Draper had rejected the offer. The prosecutor, however, asked that Draper
state for the record that he rejected the offer.

       At that point, the MJ told Draper that the government had made him an
offer to plead with a written agreement and that the proposed agreement
would waive his appellate rights. The prosecutor agreed with that description
and indicated to Draper that the proposed agreement came with “other
mechanisms” that could “benefi[t]” him. The prosecutor then asked Draper
whether he was rejecting that offer, and Draper replied, “No.” The MJ then
asked the necessary follow-up, “You want the offer[?]” 17 And, Draper answered
affirmatively. The MJ called a recess for Wade to “go through” the agreement
with Draper.

     Draper urges that this latter discussion constitutes improper participation
because it went beyond determining whether an offer had been communicated
and explained the details of the offer. Though these statements may fall within
the ordinary meaning of “participation,” given that the judge facilitated the
conversation, this again seems to be the kind of participation blessed by Frye.
The aim of the entire exercise is “to ensure that [the] defendant ha[d] been
fully advised” of any “formal offers,” Frye, 566 U.S. at 146, and that is exactly
what the MJ was doing. 18 Given Frye, these statements, under our plain-error
standard of review, do not constitute the requisite clear or obvious error.



       17 The transcript has that reply as ending with a period, as though the MJ made a
declaration instead of asking a question. But, the entire context (especially Draper’s reply)
indicates that the MJ intended to ask Draper whether he wanted the offer. Thus, the reply
rightly should be punctuated by a question mark.
       18See also Hemphill, 748 F.3d at 675 (opining that Frye “contemplated” that judges
can “document[] the plea offer” and “inform[] [the defendant] of its terms”).
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                           No. 16-50960
  AFFIRMED.




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