    Case: 17-50881    Document: 00514832846    Page: 1   Date Filed: 02/12/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT

                                                                 United States Court of Appeals

                                No. 17-50881
                                                                          Fifth Circuit

                                                                        FILED
                                                                February 12, 2019
                                                                   Lyle W. Cayce
                                                                        Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff–Appellee,

versus

ABEL DE LEON,

                                          Defendant–Appellant.




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




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

      Abel De Leon signed an agreement pleading guilty of receipt of child
pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b). Yet at his initial
sentencing hearing, De Leon claimed that he lacked the requisite mens rea,
that the government had entrapped him, and that the factual basis of the plea
was inaccurate. The court offered to schedule a trial, and De Leon welcomed
the proposal. At the pretrial conference, however, De Leon again changed his
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                                 No. 17-50881
mind and pleaded guilty under the original agreement. Now on appeal he
insists that the district court committed plain error by restricting his right to
withdraw the guilty plea and by involving itself in plea negotiations. See FED.
R. CRIM. P. 11(c)(1), (d)(1). We disagree and affirm.

                                       I.
      In 2012, Homeland Security agents searched De Leon’s home and dis-
covered two DVDs containing seventy-three child pornography videos, as well
as forty-eight deleted videos on his computer. De Leon was charged with
receipt of child pornography, 18 U.S.C. § 2252A(a)(2), (b); distribution of child
pornography, id.; and accessing child pornography with the intent to view it,
id. § 2252A(a)(5)(B), (b). He signed a written agreement, pleading guilty to the
first charge, admitting its factual basis, and waiving appeal.

      But at rearraignment, De Leon protested that he had thought viewing
child pornography was legal because the videos were readily available online.
He acknowledged, however, that he now understood the activity to be unlawful.
After ensuring that De Leon had freely and voluntarily signed the plea agree-
ment, the magistrate judge recommended that the district court accept the
guilty plea.

      At his initial sentencing hearing in April 2014, De Leon again averred
that he did not knowingly or intentionally commit a crime because he thought
that freely accessible videos were lawful. And while he recognized that it was
unlawful to have sex with a minor, he did not know that watching such videos
was also prohibited. De Leon further contended that he had been forced to
accept the plea agreement even though it contained misleading information.
Specifically, he claimed that he had already deleted all the illegal images at
the time of the search and that the two DVDs found at his house did not belong
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                                       No. 17-50881
to him. Finally, he alleged that the government deliberately allowed websites
to feature child pornography to entrap people like him.

       The district court offered to withdraw the plea and to proceed to trial.
But the court warned that law enforcement had no duty to expurgate all illegal
images from the internet and that an entrapment defense would not be a “win-
ning strategy” at trial. De Leon requested a trial, and the court scheduled a
docket call. The parties confirmed at the docket call that they were ready for
trial, and in June 2014 there was a pretrial conference and jury selection.

       At the pretrial conference, De Leon’s counsel noted that he did not intend
to raise any affirmative defense. The court stated that it had not withdrawn
the plea agreement and that the only reason it had scheduled a trial was to
give De Leon the opportunity to present his affirmative defense. Now that
counsel had resolved not to present an entrapment defense, the district judge
remarked, “I don’t know that I’m real inclined to allow [De Leon] to withdraw
his plea.” Speaking on his own behalf, De Leon then clarified that he wanted
to raise entrapment.

       The court responded that De Leon could not present that defense because
he had failed to file timely notice of his intent to do so. 1 Because ignorance of
the law is no defense, the court rejected De Leon’s claim that he did not know-
ingly commit a crime. Lastly, the court ruled that any dispute over the number
of illegal images in De Leon’s possession was a sentencing issue reserved for
the court, not the jury. The court agreed, however, to consider his arguments
at sentencing and to allow him to contest the number of videos and the manner
in which the government had conducted its investigation.


       1See FED. R. CRIM. P. 12.3 (requiring notice of a defendant’s intent to assert a public-
authority defense).
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                                      No. 17-50881
       Upon receiving those assurances, De Leon decided to renew his guilty
plea. The court asked whether he was coerced into accepting the plea agree-
ment. De Leon replied that “in a way, [the court] shot my defense down,” but
he ultimately conceded that he suffered no coercion. The court scheduled a
sentencing hearing for the next day, at which it accepted De Leon’s guilty plea
and imposed the statutory maximum.

                                            II.
       De Leon asserts that the district court plainly erred by restricting his
right to withdraw the guilty plea and by involving itself in plea negotiations.
See FED. R. CRIM. P. 11(c)(1), (d)(1). He asks that we vacate the conviction and
sentence and assign his case to a different judge on remand. 2

       Plain-error review applies where, as here, the defendant “fail[ed] to pre-
serve an error by specific objection in the trial court.” 3 We need not wade
through the methodology for plain error because there is no error, plain or
otherwise.

                                            A.
       Before a district court accepts a guilty plea, the defendant may withdraw
it “for any reason or no reason.” FED. R. CRIM. P. 11(d)(1). The defendant
enjoys “an absolute right to withdraw his or her guilty plea before the court
accepts it.” United States v. Arami, 536 F.3d 479, 483 (5th Cir. 2008) (citation




       2Because the merits of De Leon’s claims implicate the validity of the plea agreement,
we pretermit consideration of the appeal waiver. See United States v. Draper, 882 F.3d 210,
214 & n.3 (5th Cir.), cert. denied, 138 S. Ct. 2637 (2018).
       3United States v. Vargas-Soto, 700 F.3d 180, 182 (5th Cir. 2012) (citing Puckett v.
United States, 556 U.S. 129, 135 (2009)).
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omitted). Once the court accepts the plea, however, the defendant has no un-
conditional right to withdraw it. See id. (citing FED. R. CRIM. P. 11(d)(2)).

        Both parties recognize that the district court neither explicitly nor
implicitly accepted De Leon’s guilty plea until the second sentencing hearing
in June 2014. After all, the court never expressly accepted the plea before that
date.       Moreover, the court would not have set the case for docket call or
empaneled a jury if it had previously accepted the plea agreement. Hence, De
Leon had an unqualified right to withdraw his plea before the second sentenc-
ing hearing. See id.

        The court faithfully upheld De Leon’s absolute right to withdraw his
guilty plea. Once De Leon denied having the requisite mens rea and disputed
the factual basis of the plea, the court immediately offered to withdraw the
agreement. When De Leon agreed to go to trial, the court scheduled a docket
call and empaneled a jury. In doing so, the court stated that it did not want
De Leon “to get up here and ever say he was forced by anybody to accept one
thing or the other.” Hence, the court was fully prepared to subject De Leon’s
case to the crucible of trial.

        The only reason that a trial did not occur was that De Leon continued to
waffle. After the court ruled that his defenses were inadmissible, De Leon
changed his mind—for the second time—and renewed his guilty plea. This
case is thus distinct from Arami, in which we held that the district court had
plainly erred by denying the defendant’s motion to withdraw his guilty plea. 4
In contrast, De Leon never formally requested to withdraw his plea but,



        4Arami, 536 F.3d at 483. See also United States v. Cessa, 626 F. App’x 464, 468, 470
(5th Cir. 2015) (per curiam) (noting that the case was “materially indistinguishable” from
Arami).
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                                        No. 17-50881
instead, continued to waver before ultimately deciding to persist in his original
guilty plea. There can be no error under such circumstances.

       De Leon claims, however, that the district court improperly conditioned
the withdrawal of the plea on his decision to pursue an affirmative defense.
But far from imposing any such condition, the court merely expressed confu-
sion as to whether De Leon was intent on going to trial. 5 Indeed, the court
noted that it had scheduled a trial because De Leon had desired an opportunity
to present his affirmative defense. Yet now that counsel had resolved not to
present an entrapment defense, the district judge was understandably puz-
zled. Especially given De Leon’s chronic indecision, the judge’s stray comments
do not amount to a violation of Rule 11(d)(1).

                                              B.
       Rule 11(c)(1) prohibits the court from participating in plea discussions
between the government and the defendant or his attorney. See FED. R. CRIM.
P. 11(c)(1). “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.” Draper, 882 F.3d at 215 (internal quotation marks and citation
omitted).

       The rule serves three purposes. First, “it diminishes the possibility of
judicial coercion of a guilty plea,” regardless of whether the coercion would
actually cause an involuntary plea. 6 Second, it preserves the “trial court’s im-




       5“If [counsel’s] strategy now is not to present any evidence of an affirmative defense,
then why should I reject the plea?”; “Now what I’m understanding is . . . there is not going to
be an entrapment defense, so what are we doing?”
       6   United States v. Daigle, 63 F.3d 346, 348 (5th Cir. 1995) (citing United States v.
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                                        No. 17-50881
partiality,” lest the “judge who suggests or encourages a particular plea bar-
gain . . . feel a personal stake in the agreement” and “resent the defendant who
rejects his advice.” United States v. Pena, 720 F.3d 561, 571 (5th Cir. 2013)
(quoting Miles, 10 F.3d at 1139). Third, it avoids confusion over “the judge’s
role in the proceedings,” 7 ensuring that he remains a “neutral arbiter” rather
than an “advocate for the agreement.” Daigle, 63 F.3d at 348. “In light of these
considerations, we have not hesitated to find a Rule 11 error even when the
court’s participation is minor and unintentional.” United States v. Ayika,
554 F. App’x 302, 305 (5th Cir. 2014) (per curiam).

       In assessing a claim of improper judicial participation, we consider
“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.” Draper, 882 F.3d
at 216 (quoting United States v. Hemphill, 748 F.3d 666, 673 (5th Cir. 2014)).
A trial judge violates Rule 11(c)(1) by making statements that may be “con-
strued as predictive of the defendant’s criminal-justice outcome; suggestive of
the best or preferred course of action for the defendant; or indicative of the
judge’s views as to guilt.” Id. at 215 (citing Ayika, 554 F. App’x at 305). But a
judge does not offend the rule “where performing the duties mandated by
Rule 11(b).” Id. (citing Miles, 10 F.3d at 1140).

       The district court never interfered in active negotiations, given that the
comments at issue occurred after De Leon had volitionally signed the plea
agreement and disclosed its terms to the district court. Hence, this case is
distinguishable from United States v. Rodriguez, 197 F.3d 156, 159–60 (5th


Miles, 10 F.3d 1135, 1139 (5th Cir. 1993)).
       7   Pena, 720 F.3d at 571 (quoting Miles, 10 F.3d at 1139).
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Cir. 1999), and Pena, 720 F.3d at 574–75. In Rodriguez, the court had made
suggestive statements before the defendant signed the plea agreement. Rodri-
guez, 197 F.3d at 158. And in Pena, the judge had made improper remarks
before the terms of the plea agreement were revealed to the court. 8 In both
cases, we vacated the convictions because, absent the court’s participation, it
was unclear whether, and under what terms, the defendants would have
pleaded guilty. Such is not a concern here.

       De Leon counters that he withdrew his guilty plea at the initial sentenc-
ing hearing and that the court improperly entered ongoing negotiations at the
pretrial conference.       De Leon’s tale plays fast and loose with the record.
Though, at the initial sentencing hearing and the docket call, he evinced a
desire to go to trial, De Leon never moved to withdraw his guilty plea, and he
continued to vacillate at the pretrial conference.               Because De Leon never
clearly withdrew his signed plea agreement, the district court did not partici-
pate in ongoing negotiations. Instead, it fulfilled its duty “actively [to] evalu-
at[e] a [defendant’s decision to plead guilty].” Draper, 882 F.3d at 216 (quoting
Hemphill, 748 F.3d at 673 ).

       But even if De Leon had withdrawn his plea, there was no violation of
Rule 11(c)(1). According to De Leon, the court pressured him into renewing his
guilty plea by stating that he could proceed to trial only if he presented an
entrapment defense and by then barring that defense.                       Yet as already
discussed, the district court imposed no such condition on his right to a trial.
Rather, the court was justifiably perplexed by De Leon’s mercurial intentions.



       8 Id. at 574–75. See also United States v. Crowell, 60 F.3d 199, 204 (5th Cir. 1995)
(finding it “critical” that the court’s comments were “injected into the discussions while the
parties were still preparing the [plea] agreement”).
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                                       No. 17-50881
        De Leon next maintains the court improperly entered negotiations by
suggesting that none of his defenses would lead to an acquittal. But the court
merely ruled on the admissibility of De Leon’s defenses at trial. Indeed, it held
that De Leon could not present an entrapment defense because he had failed
to provide timely notice of his intent to do so. See FED. R. CRIM. P. 12.3.
Moreover, explaining that ignorance of the law is no defense, the court rightly
rejected De Leon’s claim that he did not knowingly commit a crime. The court
also determined that De Leon could contest the number of images at sentenc-
ing but not before the jury. Nothing in Rule 11(c)(1) prevents the court from
making such evidentiary rulings, and De Leon does not challenge them here. 9

       Finally, De Leon urges that the district court erred by “chang[ing] the
terms of the [plea] agreement.” Rodriguez, 197 F.3d at 159 (citation omitted).
De Leon initially agreed not to dispute the factual basis of the plea. But later
at the pretrial conference, the court offered to schedule an evidentiary hearing
to determine the number of illegal images and the manner in which the gov-
ernment had conducted the investigation. De Leon asserts that, in doing so,
the court altered the terms of the agreement by allowing him to contest facts
he had previously promised not to challenge.

       That argument is frivolous. The plea agreement stated that two DVDs
containing seventy-three child pornography videos were found in De Leon’s
house. It further stipulated that De Leon was the sole owner with exclusive
access to the desktop computer, that he had searched for and viewed illegal


       9 At the initial sentencing hearing, the district court observed that De Leon’s proposed
entrapment defense was “not a winning strategy.” Though the court may not make state-
ments that suggest the preferred course of action for a defendant, Draper, 882 F.3d at 215,
that remark did not occur during active plea negotiations. The district judge made that
comment after De Leon had signed the plea agreement and before he expressed any inclina-
tion to withdraw it. Cf. Rodriguez, 197 F.3d at 159–60.
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                               No. 17-50881
images, and that he subsequently had deleted them from his computer. But
nowhere did the agreement specify that the two DVDs belonged to De Leon. In
allowing De Leon to contest his ownership of the DVDs for sentencing pur-
poses, the district court therefore did not change the terms of the plea
agreement.

     There is no error.     The judgment of conviction and sentence is
AFFIRMED.




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