     Case: 15-10728      Document: 00513537973         Page: 1    Date Filed: 06/07/2016




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

                                    No. 15-10728
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                              June 7, 2016
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

CHRISTOPHER STEPHEN MARTIN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-183-1


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Pursuant to a written plea agreement, Christopher Martin pleaded
guilty to one count of felon in possession of a firearm, 18 U.S.C. § 922(g). The
district court sentenced him to 96 months of imprisonment and three years of
supervised release. On appeal, Martin argues that his guilty plea should be
vacated because the district court impermissibly participated in plea
negotiations in violation of Federal Rule of Criminal Procedure 11(c)(1).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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      Because Martin raised an objection to the district court’s alleged
improper participation in plea negotiations, this court’s review is for harmless
error under Rule 11(h). When review is for harmless error under Rule 11(h),
the Government has the burden of showing that an alleged error did not affect
the defendant’s substantial rights. See United States v. Davila, 133 S. Ct. 2139,
2147 (2013). The focus of the harmless error inquiry “is whether the district
court’s flawed compliance with Rule 11 may reasonably be viewed as having
been a material factor affecting the defendant’s decision to plead guilty.”
United States v. Daigle, 63 F.3d 346, 349 (5th Cir. 1995). “We must consider
whether it was reasonably probable that, but for the district court’s comments,
the defendant would have exercised his right to go to trial.” United States v.
Hemphill, 748 F.3d 666, 672 (5th Cir. 2014) (citations omitted).
      Martin claims that the district court impermissibly participated in plea
negotiations when it made the following statement: “And if you were to plead
guilty today under these circumstances, I would give you the two points for
acceptance [of responsibility].” This court has described Rule 11(c)(1) as a
“bright line rule” that absolutely prohibits “all forms of judicial participation
in or interference with the plea negotiation process.” United States v. Pena,
720 F.3d 561, 570 (5th Cir. 2013) (citations omitted).          The bright line
prohibition of Rule 11(c)(1) serves to diminish the court’s impartiality by giving
the court a stake in the plea bargaining process, and to avoid creating the
impression that the court is an advocate for a plea. See id. at 570-71; United
States v. Rodriguez, 197 F.3d 156, 158-59 (5th Cir. 1999).
      While the better practice would be not to make comments such as this
one, it is questionable whether the subject statement constituted the district
court’s improper participation in plea negotiations. By making the statement,
the district court did not indicate Martin’s likely sentence. See Daigle, 63 F.3d



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                                  No. 15-10728

at 348-49. Furthermore, the district court’s statement did not indicate its view
of the probable consequences of going to trial or accepting a negotiated plea
deal. See Rodriguez, 197 F.3d at 159-60 (citation omitted). Nor did the district
court inject itself into any discussion of the particular terms of conditions of
any plea agreement. See United States v. Crowell, 60 F.3d 199, 204 (5th Cir.
1995). Additionally, the district court made the subject statement immediately
prior to trial, when it was clear that plea negotiations were not ongoing. See
United States v. Reasor, 418 F.3d 466, 479 (5th Cir. 2005) (holding that “Rule
11’s prohibition does not apply” where the parties have failed to reach a plea
agreement, and there is “no ongoing plea negotiations”).
      Moreover, the context of the subject statement undermines the
contention that the remark was improper. Davila, 133 S. Ct. at 2150 (holding
that the effect of the district court’s “comments should be assessed, not in
isolation, but in light of the full record”). The district court made the statement
after Martin lamented that he had rejected a prior plea offer based on his
misapprehension that negative gunshot residue (GSR) test results existed that
were favorable to his case. Because Martin did not have the benefit of knowing
that favorable GSR test results did not exist when he previously rejected the
Government’s plea offer, the district court merely opened the door for plea
negotiations to occur. It was in this context that the district court then made
the single comment that a two-point guidelines reduction would still be
available for acceptance of responsibility if Martin pleaded guilty. Further, the
district court made the subject comment after admonishing Martin with the
following: “I’m not encouraging you to plead.       I don’t have an interest in
whether you do or don’t.” Thus, when viewed in the context of the entire
colloquy, the district court, in making the single comment at issue, does not
appear to have been advocating for or encouraging a guilty plea, as is



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                                  No. 15-10728

prohibited under this court’s precedent. See Pena, 720 F.3d at 570-71; United
States v. Miles, 10 F.3d 1135, 1139 (5th Cir. 1993).
      Nevertheless, even if the district court’s comment arguably violated Rule
11(c)(1), Martin has failed to rebut the Government’s showing that the
comment “may [not] reasonably be viewed as having been a material factor
affecting [his] decision to plead guilty.” Daigle, 63 F.3d at 349. In support of
his argument that the district court’s comment was a material factor, Martin
points to the fact that he filed a motion to withdraw his guilty plea and, after
its denial, a motion to reconsider the denial of same. However, other than
pointing to the fact that he filed the motions, Martin fails to explain how the
motions establish that the district court’s single comment was a material
factor. The record shows that Martin pleaded guilty first and foremost after
learning that certain favorable evidence—negative GSR tests—never existed.
Immediately after learning that favorable GSR test results did not exist, and
the district court informing Martin that it could not order the tests to be
performed, Martin sought to, and in fact did, engage in plea discussions.
Moreover, it was the absence of favorable GSR test results, Martin’s mistaken
belief about the existence of this evidence, and his perception that his counsel
was ineffective in advising him about same, that formed the basis for his
motion to withdraw his plea. While, in his subsequent motion to reconsider
the denial of his motion to withdraw his guilty plea, he averred that he felt
pressured by the district court to enter into a plea, he points to nothing in the
record to buttress this self-serving statement. In light of the entire record as
a whole, Martin has failed to rebut sufficiently the Government’s argument
that the single comment made by the district court was not a “material factor”
in his decision to plead guilty. Thus, even if the district court’s single comment




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constituted improper participation in plea negotiations in violation of Rule
11(c)(1), the error was harmless and the district court’s judgment is affirmed.
      Martin separately argues that “there is a clerical error in the written
judgment because it states that a magistrate judge conducted the
rearraignment . . . when U.S. District Judge Lynn conducted the guilty plea
hearing.” Martin seeks “remand to the district court to amend or correct
appellant’s judgment to state that the guilty plea was heard by the district
court.” The Government does not quarrel with Martin’s contention that a
clerical error exists, but avers that the error “is immaterial to Martin’s
conviction and needs no correction.”
      Federal Rule of Criminal Procedure 36 provides: “After giving any notice
it considers appropriate, the court may at any time correct a clerical error in a
judgment, order, or other part of the record, or correct an error in the record
arising from oversight or omission.” Consonant with this broad authority, this
court has remanded criminal appeals with directions to the district court to
make minor corrections in the judgment, such as fixing typos, which likely
would not themselves give rise to an appealable issue. See, e.g., United States
v. Hernandez, 613 F. App’x 406 (5th Cir.) (remanding for correction of judgment
which identified offense as 21 U.S.C. § 84(a)(1) rather than 21 U.S.C.
§ 841(a)(1)), cert. denied, 136 S. Ct. 350 (2015). This court may remand for the
correction of such clerical errors even if there is an enforceable appeal waiver.
See United States v. Higgins, 739 F.3d 733, 739 n.16 (5th Cir. 2014). In light
of the fact that the clerical error cited by Martin is manifest, this case will be
remanded for the limited purpose of correcting Martin’s judgement of
conviction so that it no longer incorrectly reflects that his rearraignment
occurred before a magistrate judge.




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                               No. 15-10728

     REMANDED to the district court for the limited purpose of correcting a
clerical error in the written judgment, see FED. R. CRIM. P. 36. In all other
regards, AFFIRMED.




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