     Case: 13-30160      Document: 00513184241         Page: 1    Date Filed: 09/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-30160
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               September 8, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

BENSON CORIOLANT,

              Defendant - Appellant




                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:11-CR-241-1


Before STEWART, Chief Judge, and JONES and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant Benson Coriolant appeals his jury-trial conviction and 480-
month sentence for sex trafficking of a minor. He argues on plain error review
that the district court violated Federal Rule of Criminal Procedure 11(c)(1) by
improperly participating in his plea negotiations, and that he is entitled to
vacatur of his conviction or to resentencing by a different judge. For the
following reasons, we AFFIRM Coriolant’s conviction.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 BACKGROUND
      An FBI investigation led to Benson Coriolant’s arrest for an illegal sex
trafficking operation that included teenage victims. After his subsequent four-
count indictment, a jury convicted Coriolant of conspiracy to commit sex
trafficking of children, in violation of 18 U.S.C. § 1594(c) (Count I); sex
trafficking of children, in violation of 18 U.S.C. §§ 1591(a) and 2 (Count II);
coercion and enticement of an individual to travel to engage in prostitution, in
violation of 18 U.S.C. §§ 2422(a) and 2 (Count III); and coercion and enticement
of a minor to engage in illegal sexual activity, in violation of 18 U.S.C. §§
2422(b) and 2 (Count IV).
      A.    Plea Bargaining History
      On several occasions, Coriolant was offered - but ultimately refused -
plea agreements consisting of various terms.
      The government and Coriolant’s first appointed counsel initially
informed the district court they were considering entering an agreement
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) during an April 19,
2012 status conference. Later, during a subsequent May 8, 2012 status
hearing, the government presented Coriolant with a copy of a plea agreement
for his consideration.
      On September 17, 2012, prior to commencement of trial, the court
inquired about the plea bargaining history of the case, so that the information
could be part of the record.      Coriolant’s newly-appointed counsel, Dwight
Doskey, informed the court that in consideration of an offer for a plea to Count
II of his indictment in exchange for a proposed range of 20 to 25 years,
Coriolant had responded “that he was not interested in pleading to that term
of years.” Coriolant agreed with counsel’s representation.
      Doskey further stated that days before the commencement of trial, the
government reiterated its offer to entertain a guilty plea to Count II with an
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                                  No. 13-30160
agreement not to seek an upward departure from the sentencing guideline
range. Coriolant rejected that offer as well. The government confirmed this
offer, stating that it was tendered at Doskey’s request “to make one last plea.”
Doskey also relayed that Coriolant had informed him that the government told
his initial counsel that it was still willing to let Coriolant plead guilty to Count
II but without making any promises as to sentencing requests. At the end of
the discussion, Coriolant conferred with Doskey because, according to Doskey,
“[Coriolant] just wanted to make sure that Your Honor understood that he does
not wish to avail himself of any plea offer whatsoever.” Coriolant confirmed
that to the court.
      B.    Trial and Sentencing
      The evidence adduced at trial supported the allegations in Coriolant’s
indictment. This evidence included testimony against Coriolant from three
witnesses who detailed Coriolant’s sex trafficking operation. After a four-day
trial, the jury convicted Coriolant on all four counts. Although the guidelines
range was life, the district court varied downward and imposed a total sentence
of 480 months imprisonment. Coriolant filed a timely notice of appeal.
      C.    Procedural History on Appeal
      Coriolant’s appointed appellate counsel submitted a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that no non-frivolous
grounds for appeal existed. For the first time on appeal in his pro se response
to his appellate counsel’s Anders brief, Coriolant contends, inter alia, that the
district court was biased and improperly participated in plea negotiations.
Specifically, Coriolant asserts that the district court actively discouraged his
trial attorney from negotiating a plea agreement with the government, which
he contends is a violation of Rule 11. As proof of the district court’s improper
participation in plea negotiations, Coriolant submits a letter purportedly
written to him by Doskey in December 2012. The letter details a chance
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                                           No. 13-30160
encounter between Coriolant’s counsel and his trial judge, at which time
Coriolant alleges the judge improperly injected himself into pending plea
negotiations. 1
      In response to a supplemental Anders brief, Coriolant filed a second pro
se response, reasserting the Rule 11 issue. In this second response, Coriolant
reiterated many of the arguments from his initial pro se response, and stated
that he felt the district court’s alleged improper participation in the plea
negotiations left him with no other choice but to go to trial. This appeal
followed.
                                  STANDARD OF REVIEW
      As Coriolant concedes, he neither raised the Rule 11(c)(1) issue nor
objected to the alleged ex parte statement during any of the proceedings before
the district court. Accordingly, we review the issue for plain error. See United
States v. Vonn, 535 U.S. 55, 58-59 (2002) (applying plain error review to alleged
Rule 11 violation). To establish plain error, Coriolant must show: (1) error; (2)
that is clear or obvious, and; (3) that affected his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). We reach the fourth prong - which
grants us discretion to remedy the error in the serious interest of “the fairness,
integrity or public reputation of judicial proceedings” - only if the first three
prongs are satisfied. Id.
                                          DISCUSSION
      Coriolant contends that the district court’s alleged participation in the
plea negotiations constitutes plain error and warrants either vacatur of his
conviction or resentencing by a different judge. Our review of the record,
however, reveals a lack of competent evidence presented in satisfaction of
Corliant’s burden and prevents a finding of error of any kind.


      1   The contents of the subject letter are more fully elaborated upon in this court’s discussion.
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                                 No. 13-30160
      The single piece of evidence in furtherance of Coriolant’s arguments is
Doskey’s letter to Coriolant, which states:
      Finally, as promised last week, I am again giving you the facts.
      Shortly after I enrolled in the case, I chanced upon the judge as he
      was walking his dog outside the courthouse. He remarked that we
      had one case open with each other, and that I should “not work too
      hard on that 11(c)(1)(C) plea”. I took this to mean that he would
      not approve the deal or would have problems approving the deal,
      because he believed that 25 years was not a sufficient sentence in
      a case such as this. He never said clearly that he would reject the
      deal—you were the one who rejected the deal—and since that time
      he has restated how seriously he views violations of 18 U.S.C. [§
      1591].

      Coriolant undeniably fails to satisfy his burden on the record before us.
While Coriolant places his full reliance upon Doskey’s account of events and
interpretation, Doskey’s unsworn letter alone is insufficient proof that the
statement occurred, let alone that Doskey’s interpretation of the statement
was accurate. The record is similarly devoid of any reference to the context of
the statement or any acknowledgement as to when Coriolant first learned of
the statement.
      Moreover, the record is inconclusive as to whether or not the judge knew
the specifics of the pending plea agreement and thus does not prove that the
statement, even if it was made, was a comment on the pending plea agreement
of the kind that would violate Rule 11. On the insufficiently developed record
before us on this direct appeal, there is simply no conclusive evidence that the
judge violated the Rule 11(c)(1) prohibition on judicial participation in plea
negotiations.
      For these reasons, we AFFIRM Coriolant’s conviction.




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