                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-4491


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

SAVINO BRAXTON,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:09-cr-00478-RDB-1)


Argued:   March 26, 2015                    Decided:   April 28, 2015


Before NIEMEYER, KING, and HARRIS, Circuit Judges.


Vacated and remanded by published opinion.    Judge Harris wrote
the opinion, in which Judge Niemeyer and Judge King joined.


ARGUED: Andrew Robert Szekely, LAW OFFICES OF ANDREW R. SZEKELY,
LLC, Greenbelt, Maryland, for Appellant.   John Francis Purcell,
Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee.     ON BRIEF: Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
PAMELA HARRIS, Circuit Judge:
       For        months,        Savino          Braxton        (“Braxton”)        insisted     on

exercising his right to go to trial, despite the substantial

mandatory minimum penalty he would face if convicted.                                     On what

would    have       been       the     first       day     of    trial,     however,      Braxton

reversed         course        and     accepted         the     government’s       plea    offer.

Because      the     district         court       impermissibly       participated        in   the

discussions that led to Braxton’s change of heart, we vacate and

remand for further proceedings.



                                                   I.

       Braxton           was    charged          with      possession       with      intent    to

distribute one kilogram or more of heroin, in violation of 21

U.S.C.       §    841(a)       (2012).           Ordinarily,        this    charge    carries    a

mandatory minimum penalty of ten years’ imprisonment.                                  21 U.S.C.

§ 841(b)(1)(A) (2012).                     But where the defendant, like Braxton,

has a prior felony drug conviction, the government may elect to

file     a       prior    felony        information,            effectively        doubling    the

mandatory minimum to twenty years’ imprisonment.                                    See id.; 21

U.S.C. § 851(a) (2012).

       In the fall of 2012, Braxton discussed the possibility of a

guilty       plea        with        his        court-appointed           counsel,     Arcangelo

Tuminelli         (“Tuminelli”).                During    those     discussions,       Tuminelli

expressed         concern       that       if    Braxton      did   not    plead     guilty,   the

                                                    2
government might choose to file a prior felony information under

§ 851.    Unswayed, Braxton refused to plead guilty and moved for

the appointment of new counsel, complaining that Tuminelli was

“not interested in taking the case to trial” and had “vehemently

goad[ed] [him] to plead guilty.”           J.A. 36-37.       During a hearing

on that motion, the district court indicated that it did not

“find it really to be a situation where [Braxton] should get

substitute counsel,” and Braxton agreed to withdraw his request.

J.A. 112.

     Meanwhile,    on   November     19,   2012,    Tuminelli’s    fears    were

realized:       The     government    indeed       filed    a   prior    felony

information under § 851.         As a result, Braxton faced a mandatory

minimum penalty of twenty years’ imprisonment if convicted after

trial.    At the time, he was fifty-five years old.

     Trial was scheduled to begin on February 11, 2013.                    That

morning, the district court memorialized for the record that

Braxton   had   received   and    rejected   a     plea    agreement    formally

offered by the government. 1       Under the terms of the rejected plea

agreement, Braxton faced a minimum of ten years’ imprisonment,


     1
       Under Missouri v. Frye, 132 S. Ct. 1399 (2012), a defense
counsel’s failure to communicate a formal plea offer may
constitute ineffective assistance of counsel.   To guard against
such claims, the Supreme Court has suggested that “formal offers
. . . be made part of the record . . . before a trial on the
merits, . . . to ensure that a defendant has been fully advised
before those . . . proceedings commence.” Id. at 1409.


                                      3
and the government promised to ask for no more than fifteen

years.     In the words of the district court, the government had

“essentially” offered to “withdraw the 851 notice” in exchange

for a guilty plea.        J.A. 237.         On the record, Braxton confirmed

that he understood the offer, and that he nevertheless wished to

reject it and proceed to trial.

       Immediately thereafter, Braxton orally requested that he be

appointed    new    counsel      or,   in       the    alternative,        that    he    be

permitted to represent himself.                      The district court promptly

denied   both     requests.      First,         the   district     court    found    that

there was no need for new counsel because Braxton’s conflict

with Tuminelli was not “so great that it results in any lack of

communication.”        J.A. 240.       Next, the district court noted that

Braxton’s request to represent himself was being made literally

“on the morning of trial” and therefore was “not timely.”                               J.A.

252.

       Although    Braxton’s     requests            for   new   counsel     and     self-

representation already had been denied, discussion of Braxton’s

grievances against Tuminelli continued.                     At core, attorney and

client     disagreed     about     whether           Braxton     should     accept      the

government’s plea agreement or go to trial.                         Although Braxton

admitted    that    he   was   “guilty”         of    possessing     with    intent      to

distribute some quantity of heroin, he nevertheless insisted on

proceeding to trial to “test[] the validity of the weight of the

                                            4
drugs.”    J.A. 253.       Tuminelli, for his part, took the position

that Braxton should have accepted the plea agreement.

     Drawn      into   this   dispute,       the   district    court      repeatedly

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

best for Braxton to take the government’s offer and forgo trial.

The court told Braxton, “I am not favorably inclined towards

having you go to trial and trigger a mandatory minimum of 20

years, as opposed to a plea offer that’s down in the 10 to 15

year range in terms of years of your life.”                   J.A. 265.      In the

court’s    words,      Braxton   was   “hurting      [his]    own    interest”   by

choosing   to    go to    trial.       J.A. 267. 2         Given    the   sentencing

“scenario,”      the     district      court       found    Braxton’s       position

difficult to comprehend, comparing the decision to go to trial

to “put[ting] [your] head in a buzz saw that makes absolutely no

sense.”    J.A. 272.       At the conclusion of this first series of


     2
       See also J.A. 267-68 (characterizing “going to trial and
doubling a mandatory minimum” to twenty years as “just almost
silly when [Braxton was] in a potential range of 10 to 15
years”); J.A. 268 (characterizing the plea agreement as a “far
more sensible way to approach” the drug quantity question than
going to trial); J.A. 271 (emphasizing that, if Braxton accepted
the plea agreement, the court would not be “bound” by the
twenty-year mandatory minimum triggered by the § 851 notice, and
would therefore be “free to sentence [Braxton] to 10 years”);
J.A. 276 (stating that Braxton’s concern regarding quantity and
sentencing was an issue that could “be addressed in another
context” and “d[idn’t] need to be addressed in terms of a jury
trial, where [he] face[d] the potentiality of a 20-year minimum
mandatory” and the court’s “hands [would be] tied” with respect
to a more lenient sentence).


                                         5
remarks, the district court instructed Braxton “to talk to [his]

lawyer” and ordered a ten-minute recess.                  J.A. 276.           Thirty

minutes later, the district court briefly reconvened in order to

excuse the jury for lunch.           At that time, the district court

again advocated for the rejected plea agreement, declaring, “[A]

defendant shouldn’t put his head in a vice [sic] and face a

catastrophic    result    just   over    a    dispute    over    drug   quantity.

That’s the point.”       J.A. 277.

       During the forty-five-minute lunch recess that immediately

followed, Braxton changed his mind and accepted the same plea

agreement that he had rejected that morning.               The district court

conducted a Rule 11 colloquy as soon as it reconvened in the

afternoon.     Referring to that morning’s discussion of the plea

agreement,     the   district    court       explained    that    it    had    been

motivated by concern “over [Braxton’s] unwisely proceeding to

trial before a jury.”        J.A. 284.       At the same time, the district

court asked Braxton whether he had “felt forced or threatened or

pushed” to plead guilty.         J.A. 285.      Braxton replied, “No, sir.”

J.A.   285.     Satisfied,    the    district     court   accepted      Braxton’s

guilty plea and scheduled sentencing.

       In May 2013, Braxton filed a pro se motion to withdraw his

guilty plea on the basis of ineffective assistance of counsel.

At his June 17, 2013, sentencing hearing, Braxton again asked to

withdraw his guilty plea, this time arguing that his plea had

                                        6
been involuntary.         Braxton contended that he had been “eager to

go to trial,” but had been pressured to plead guilty by the

district court.         J.A. 329.      The district court denied Braxton’s

request and sentenced him to eleven and one-half years, or 138

months, of imprisonment.         Braxton timely appealed.



                                         II.

                                         A.

     Under Federal Rule of Criminal Procedure 11(c)(1), “[a]n

attorney for the government and the defendant’s attorney . . .

may discuss and reach a plea agreement.”                   Courts, however, are

expressly         prohibited      from         “participat[ing]        in       these

discussions.”           Id.     This    prohibition,    added     in    1974,    was

intended     to    eliminate     the    previously     “common    practice”        of

judicial participation in plea negotiations, United States v.

Davila,     133    S.     Ct.   2139,    2146     (2013)     (quoting       Advisory

Committee’s 1974 Note on Subd. (e)(1) of Fed. R. Crim. P. 11,

18 U.S.C.App., p. 1420 (1976 ed.)), and serves three principal

interests.        First, “it diminishes the possibility of judicial

coercion of a guilty plea.”              United States v. Sanya, 774 F.3d

812, 815 (4th Cir. 2014) (quoting United States v. Bradley, 455

F.3d 453, 460 (4th Cir. 2006)).                 Second, “it protects against

unfairness and partiality in the judicial process.”                      Id.     And

finally, “it eliminates the misleading impression that the judge

                                          7
is an advocate for the agreement rather than a neutral arbiter.”

Id.

       We    recently       had   occasion       to    apply    these     principles     in

United States v. Sanya, 774 F.3d 812 (4th Cir. 2014).                             In that

case, we found that the district court committed plain error by

“repeatedly intimat[ing] that a plea to the . . . charges was in

[the    defendant’s]        best    interests”         and    “strongly      suggest[ing]

that [the defendant] would receive a more favorable sentence if

he agreed to plead guilty.”              Id. at 816.           Because these comments

occurred “just five days” before the defendant changed his mind

about going to trial and executed a plea agreement, we found

that    there    was    a    “reasonable     probability          that,     but   for   the

error, he would not have entered the plea,” and that the error

had therefore affected his “substantial rights.”                            Id. at 817-18

(quoting United States v. Dominguez Benitez, 542 U.S. 74, 83

(2004)).        Finally, we found that, in light of “the critical

interests served by the prohibition” on judicial participation

in    plea   discussions,         our   refusal       to     notice   the    error   would

“seriously affect the fairness, integrity or public reputation

of judicial proceedings.”               Id. at 821 (quoting United States v.

Olano, 507 U.S. 725, 736 (1993); Bradley, 455 F.3d at 463).                              On

the    basis    of   these    findings,      we       concluded    that     the   district

court had committed reversible error.                        Id. at 821-22.        Because



                                             8
this case is on all fours with Sanya, we are compelled to find

reversible error here as well. 3

       First,        as   in    Sanya,      the       district       court    made   repeated

comments,         doubtlessly          well-intentioned,              that      nevertheless

suggested that a plea would be in Braxton’s best interest, and

that       Braxton    would      receive     a    more       favorable       sentence   if   he

pleaded      guilty.           See   id.    at    816.        The    district    court,      for

instance, baldly stated that it was “not favorably inclined”

toward Braxton going to trial, J.A. 265, a course it described

as “almost silly,” J.A. 267-68, and compared to “put[ting] your

head in a buzz saw,” J.A. 272.                        The court also implied that a

plea would benefit Braxton at sentencing, warning Braxton that

while it would be “free to sentence [him] to 10 years” if he

took the plea, J.A. 271, its “hands [would be] tied” by the

twenty-year minimum if he rejected the plea and then lost at

trial, J.A. 276.                This advice, moreover, had the unfortunate

effect       of   emphasizing         for    Braxton         that    the     judge   who     was

counseling him to accept a plea was the same judge who would be

sentencing        him,    increasing        the       risk    that    Braxton    would     feel

coerced to do as the judge advised.                      See Sanya, 774 F.3d at 821.


       3
       Because we find that Braxton is able to satisfy the more
stringent plain-error standard of review applied in Sanya, we
need not decide whether the alleged Rule 11(c)(1) error in this
case was properly preserved for review under the harmless-error
standard.


                                                  9
      This is not a case involving a single or even a few brief

remarks     by    the    court,      or   comments        made    only    after    a    plea

agreement already has been reached.                      See id. at 816; cf. United

States v. Cannady, 283 F.3d 641, 644 (4th Cir. 2002) (finding no

error where district court’s comments were made after the plea

agreement had been executed).                Instead, as in Sanya, the court’s

commentary was extensive and persistent, and continued unabated

throughout the morning session, again when the court reconvened

to recess for lunch, and even during the afternoon plea colloquy

itself.     In Sanya, we found that such “repeated remarks clearly

constitute       judicial    participation           in     plea     discussions,        and

[that] the district court erred in engaging in them,” even if it

acted only with the best of intentions.                          774 F.3d at 816.        We

reach the same conclusion here.               We also find that the error was

plain:       As    we    held       in    Sanya,    the     rule     against      judicial

participation       in    plea      discussions      is     longstanding,        and    “the

doctrine surrounding its interpretation is well-settled.”                                Id.

at   817;   see    also     Bradley,       455     F.3d     at    460    (Rule    11(c)(1)

“clearly     prohibits          a    court        from     participating          in    plea

negotiations.”).

      Our    reasoning       in      Sanya    guides        our     analysis       of   the

“substantial rights” inquiry in this case, as well.                                In this

context, a defendant’s substantial rights are affected if review

of the “full record” reveals a “reasonable probability” that the

                                             10
error     led   him   to    enter    the   plea. 4    Sanya,    774    F.3d   at   817

(quoting Dominguez Benitez, 542 U.S. at 83).                    As in Sanya, our

conclusion is driven largely by the timing of Braxton’s decision

to plead guilty:           It was only in the immediate aftermath of the

district court’s error — specifically, during the forty-five-

minute     lunch      recess    that       followed     the    district       court’s

admonition that Braxton “shouldn’t put his head in a vice [sic]

and face a catastrophic result . . . over drug quantity,” J.A.

277   —   that    Braxton     reconsidered      his    long    held    position     and

accepted the plea agreement.                This exceedingly “close temporal

proximity weighs heavily in favor of finding that [Braxton’s]

decision to plead guilty was the result of the district court’s

involvement in the plea negotiations.”                  Sanya, 774 F.3d at 818

(finding standard met where defendant accepted plea within five

days of violation); see also Davila, 133 S. Ct. at 2149 (where

“guilty    plea    follow[s]        soon   after”    error,   the     error   is   more

likely to be prejudicial).             Indeed, it is difficult to conceive



      4
       In its brief, the government asserts that “[i]n the
context of a guilty plea, the defendant must demonstrate that he
would not have pled guilty but for the district court’s error.”
Gov. Br. 44 (emphasis added).      That is incorrect.     As we
explained in Sanya, “[t]he Supreme Court has clearly instructed
that to establish a violation of substantial rights, a defendant
need only demonstrate a ‘reasonable probability’ that the error
led him to enter the plea,” and a defendant “need not show that,
‘but for’ the court’s error, he would have gone to trial.” 774
F.3d at 819-20.


                                           11
of any other factor that could have influenced Braxton during

this small window of time.

       Finally, as we observed in Sanya, plain error involving

judicial      participation         in    plea       discussions    “almost     inevitably

seriously         affect[s]    the       fairness       and   integrity    of    judicial

proceedings.”          774 F.3d at 821 (quoting Bradley, 455 F.3d at

463).    This case is no exception to the general rule.                               As in

Sanya, the district court’s exhortations in favor of pleading

guilty were “repeated and direct” and “saturated the hearing.”

Id.     That kind of sustained intervention on behalf of a plea

agreement — and concomitant forfeiture of the right to trial —

may reasonably be perceived “as inconsistent with the court’s

role    as    a    neutral    arbiter       of       justice,”   id.   (quoting       United

States       v.    Baker,     489        F.3d    366,     375    (D.C.    Cir.       2007)),

undermining public confidence in the court.                            Accordingly, and

after review of the entire record, we conclude that we must

follow Sanya and notice the plain error in this case.

                                                B.

       The    government      does       not     question     our   holding     in   Sanya,

arguing instead that Sanya and cases like it are distinguishable

from this one.         We are not persuaded by the government’s various

efforts to distinguish Sanya, and dispense with each below.




                                                12
                                           1.

        The government argues that no error can have occurred in

this case because Braxton stated during his Rule 11 colloquy

that his plea was given voluntarily.                      We disagree.        The very

premise of the rule at issue is that “a judge’s participation in

plea     negotiation         is     inherently          coercive,”        creating    an

unacceptable risk that a defendant will enter an involuntary

guilty plea in order to avoid offense to the court with the

power    to   preside    over     his   trial     and    determine    his    sentence.

Bradley, 455 F.3d at 460 (quoting United States v. Barrett, 982

F.2d 193, 194 (6th Cir. 1992)).                  By itself, a defendant’s mere

statement       that   his   plea    was   voluntary,       made     in    response   to

questioning by the very same judge whose apparent preferences

raised the specter of coercion in the first place, cannot dispel

that concern.          Cf. Baker, 489 F.3d at 376 (finding reversible

error notwithstanding district court’s “attempt[] to remedy its

error during the plea colloquy”).

        Nor is there anything else about the plea colloquy here

that obviates the Rule 11(c)(1) violation.                   On the contrary, the

plea colloquy in this case only exacerbates the error:                               Even

during    the    colloquy     itself,      the    district    court       continued   to

advocate against exercise of the right to trial and for the plea

agreement,       sharing      with      Braxton     its      “concern       over     your

[Braxton’s] unwisely proceeding to trial before a jury,” J.A.

                                           13
284, and its worry that Braxton would “unnecessarily jeopardize”

himself    by       failing     to    plead    guilty,        J.A.    285.        Braxton’s

statement that his plea was freely given came directly on the

heels of these judicial exhortations, and we cannot be confident

that it was not itself a product of the Rule 11(c)(1) error in

this case.          See Barrett, 982 F.2d at 194 (court intervention on

behalf    of    a    plea     “raise[s]   the      possibility,       if     only   in   the

defendant’s mind, that a refusal to accept the judge’s preferred

disposition would be punished”). 5

                                              2.

     The government’s more sustained argument is that in this

case, as opposed to Sanya, the district court was required to

remark    upon        the      advantages      of       the    plea     agreement        and

disadvantages of trial in order to determine whether Braxton’s

request    to       represent       himself    was      “knowing      and    intelligent”

within    the       meaning    of    Faretta       v.   California,         422   U.S.   806

     5
       In addition to Braxton’s statement at the colloquy, the
government   calls   our  attention  to  the  court’s  periodic
assurances that it was not in fact involving itself in the plea
negotiations. We have no doubt that the district court acted in
good faith, believing that it was in compliance with Rule
11(c)(1).   But given that we have found to the contrary, we
attach no significance to its disclaimers. See Sanya, 774 F.3d
at 818 n.4.    Nor do we attach any significance to Tuminelli’s
participation, if any, in the court’s discussion of the plea
agreement.   See Bradley, 455 F.3d at 463 (“[W]e do not examine
whether defense counsel participated in the error.”) (emphasis
in original).     And because we are applying the plain error
standard of review, defense counsel’s failure to object has no
independent significance.


                                              14
(1975),      as    well   as     to   ensure    that       the    plea    was    effectively

communicated to Braxton as contemplated by the Supreme Court’s

recent holding in Missouri v. Frye, 132 S. Ct. 1399 (2012).                                  We

disagree.

        In    this   case,       at    least,       the    government’s         argument     is

foreclosed by the sequence of events on the day in question, in

which    the      district      court   first        memorialized        the    government’s

plea offer under Frye, then denied Braxton’s motion to represent

himself under Faretta – and only then engaged in the commentary

regarding the plea agreement that is at issue here.                             At the very

opening of proceedings, the government, citing Frye, asked to

“memorialize . . . for the record” communication of its plea

offer    to    Braxton.          J.A.   234.          After      Tuminelli      agreed,      the

government        described      the    offer,       and    the    court       ensured      that

Braxton       understood        the   terms     of    the     plea   agreement         he    had

rejected.         At this point, the court brought the Frye portion of

the proceedings to a definitive close:                        “Well, that’s fine.           The

record will reflect you’ve been so advised of the plea offer in

this case.         The defendant is ready to proceed to trial.”                             J.A.

238.

        Similarly,        the    Faretta       issue       was     promptly      and     fully

resolved before the comments that give rise to this case.                                   When

Braxton moved to represent himself immediately after the plea

offer was put on the record, the court noted that the motion,

                                               15
made on the morning of trial, was not timely.                            It went on,

however,    to     undertake     the     colloquy       contemplated      by   Faretta,

ensuring    that     Braxton     was     aware     of    the    “risk    inherent      in

proceeding    without       counsel”     and     highlighting     specifically         the

difficulty of making arguments to a jury and cross-examining

witnesses without the assistance of an attorney.                    J.A. 251.         And

then the court resolved the Faretta issue in its entirety and in

no     uncertain        terms,   denying         Braxton’s      motion     for       self-

representation on timeliness grounds:                   “[W]e’re ready – you may

be   seated      now.      So    I   have      denied    your    motion    for       self-

representation.           I’ve   noted    the     analysis.      Clearly       the    main

factor is . . . this is not timely.                  It was not noted to anyone

here until suddenly this morning.                  So it’s not timely.”               J.A.

255.

       In short, it was only after it had recorded the rejected

plea offer and denied the Faretta motion for self-representation

that the district court engaged in the conduct that is the basis

of the Rule 11(c)(1) issue here.                  On this record, neither Frye

nor Faretta can distinguish this case from Sanya or excuse what

otherwise would be Rule 11 error.

       In any event, and regardless of the timing, Faretta and

Frye would not justify the comments made here.                     In Faretta, the

Supreme Court held that before a defendant can be deemed to

“knowingly and intelligently” forfeit his right to counsel, “he

                                            16
should    be    made     aware    of    the       dangers    and      disadvantages”         of

representing        himself      at    trial.        422     U.S.     at    835    (internal

quotation marks omitted). 6              The district court, as noted above,

fully complied with that mandate when it advised Braxton of the

difficulties and risks inherent in self-representation, before

denying his motion as untimely.                      It is the court’s subsequent

comments in favor of the plea agreement that are at issue here —

comments that relate not to the dangers and disadvantages of

proceeding to trial without counsel, but rather the dangers and

disadvantages       of   proceeding          to    trial   at    all,      and    would     have

applied   with      equal     force     if    Braxton      had   gone      to     trial     with

representation as without.               See, e.g., J.A. 265 (district court

stating   that      he   was     “not    favorably         inclined        towards      having

[Braxton]      go   to   trial”)       (emphasis      added).         Even       if,   as    the

government      urges,      something         more    than      the   standard         Faretta

colloquy may be authorized when there is a plea agreement on the




     6
       The Supreme Court has identified the relevant “dangers and
disadvantages” to include the difficulty that a lay person will
face in “adher[ing] to the rules of procedure and evidence,
comprehend[ing] the subtleties of voir dire, examin[ing] and
cross-examin[ing] witnesses effectively, [and] object[ing] to
improper prosecution questions.” Iowa v. Tovar, 541 U.S. 77, 89
(2004) (quoting Patterson v. Illinois, 487 U.S. 285, 299 n.13
(1988)).



                                              17
table — a question we need not resolve today — we are confident

that Faretta does not stretch so far. 7

       Nor,     contrary   to    the   government’s   suggestion,     does     Frye

require a district court to satisfy itself of the intelligence

of a defendant’s decision to exercise his right to trial instead

of accepting a plea offer.             Frye and its companion case, Lafler

v. Cooper, 132 S. Ct. 1376 (2012), concern the duty of defense

counsel to advise their clients regarding formal plea offers;

they       do   not   obligate   or    permit   judges   to   give    advice    to

defendants on whether to accept such agreements.                     There is no

allegation in this case that Tuminelli either failed to inform

Braxton of the government’s plea offer in violation of Frye or

improperly advised Braxton to reject the offer in violation of

Lafler, and the record is plainly to the contrary.                      And the

       7
       For the same reason, we reject the government’s assertion
that Braxton invited any error by asking to represent himself.
As discussed above, a district court is not required to explain
a plea agreement — let alone recommend that a defendant take it
— in response to a request for self-representation.      Nor did
Braxton otherwise request that the court explain or recommend
the plea agreement to him.    In the absence of such a request,
the invited error doctrine is not relevant to our analysis. See
United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997)
(quoting United States v. Herrera, 23 F.3d 74, 75 (4th Cir.
1994)) (invited error doctrine applies when the court is asked
“to take a step in a case” and “complie[s] with such request”);
see also Sanya, 774 F.3d at 817 n.2 (invited error doctrine
inapplicable, notwithstanding defense counsel’s “allud[ing] to
the    prospect   of    ‘global   resolution’”    and   possible
“appreciat[ion] [for] the district court’s enthusiasm for a plea
and ‘global settlement’”).



                                         18
district court, as described above, fulfilled its role under

Frye    by    memorializing         the      offer      on     the   record     at     the

government’s request, prior to making the remarks at issue in

this case.        Nothing more was required or justified by Frye.



                                          III.

       We have full confidence that the district court acted only

with the best of intentions, seeking a just resolution to the

serious charge that Braxton faced.                    Our careful review of the

record gives us no reason to think that the court intended to

coerce a guilty plea.              Nevertheless, because we also conclude

that there is a reasonable probability that the district court’s

plain error affected Braxton’s substantial rights, and that our

failure      to    recognize       this    error      would     seriously      undermine

confidence in the fairness of judicial proceedings, we vacate

Braxton’s     sentence      and     guilty      plea,    and    remand    for   further

proceedings.            Although    we    have   no     doubt    that    the    original

district judge could continue to preside fairly over this case,

we   follow       our   usual   practice        and   direct     that    the    case   be

assigned to a different judge on remand.                       See, e.g., Sanya, 774

F.3d at 822; Bradley, 455 F.3d at 465.

                                                                VACATED AND REMANDED




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