 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 11, 2019               Decided March 19, 2019

                        No. 18-3007

                UNITED STATES OF AMERICA,
                        APPELLEE

                             v.

                   CHARLES LEE SMOOT,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:17-cr-00137-1)


    Dennis M. Hart, appointed by the court, argued the cause
and filed the brief for appellant.

    Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman and Suzanne Grealy
Curt, Assistant U.S. Attorneys.

   Before: SRINIVASAN, Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.

   Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
                                2
    EDWARDS, Senior Circuit Judge: On September 20,
2017, Appellant, Charles Smoot, pled guilty to one count of
bank robbery in violation of 18 U.S.C. § 2113(a). He was
subsequently sentenced to 96 months of incarceration. He now
appeals to overturn his conviction and sentence.

     In support of his appeal, Appellant raises three claims of
ineffective assistance of counsel. He contends, first, that his
counsel was inadequately prepared for trial, second, that his
counsel failed to object to an erroneous finding allegedly made
by the District Court during sentencing and, third, that a
conflict of interest existed between him and his counsel.
Appellant’s first claim of ineffective assistance of counsel fails
because, even assuming that counsel was inadequately
prepared, Appellant has failed to show that this caused him to
plead guilty. Appellant’s second claim fails because it is based
on a mischaracterization of the record. Appellant asserts that
the District Court erroneously found, at sentencing, that
Appellant possessed a gun during the robbery, and that counsel
for Appellant should have objected to that finding. The record
is clear, however, that the District Court made no such finding
and, therefore, counsel could not have been ineffective for
failing to object. Appellant’s third claim fails because he has
not even alleged that the purported conflict of interest actually
affected his counsel’s performance.

     Appellant also argues that his plea agreement is invalid
because the District Court impermissibly participated in plea
bargaining in violation of Rule 11 of the Federal Rules of
Criminal Procedure (“Rule 11”). However, we find no merit in
this claim because the record establishes that the trial judge did
not attempt to influence or coerce Appellant into taking a plea,
nor did the judge otherwise inappropriately participate in plea
bargaining.
                               3
     Because Appellant has failed to show that he was
prejudiced by his counsel’s performance and, further, because
the record shows that the District Court did not inappropriately
participate in plea bargaining, we affirm.

                       I. BACKGROUND

     On July 5, 2017, at 9:45 a.m., the TD Bank on Rhode
Island Avenue in Washington, D.C., was robbed by a man
wearing a hat with a skull on it, sunglasses, jeans with frayed
cuffs and an insignia, a large black watch with a white border,
and light gray shoes with white soles. The robber was also
carrying a magazine and a black bag with an Under Armour
logo on it. The robber passed demand notes to two tellers, and
he said something along the lines of “Give me all your money
or I’ll kill everyone in here.” The tellers gave him
approximately $5,000. The money that was handed over by the
tellers included GPS trackers. The robber did not brandish a
weapon, but he did keep one hand concealed in the bag
throughout the robbery. The robbery was captured on high
definition surveillance cameras from several angles in the
bank.

     Shortly after the robbery, the police began tracking the
money using data coming from the GPS devices. The two
tracking devices appeared together for a period of time before
separating near 62nd Street N.E. Officers found one tracking
device along with some of the money in a black plastic bag near
308 63rd Street N.E. Data from the second tracking device led
them to a residence at 405 60th Street N.E. They began
surveilling the house and saw a man later identified as
Appellant. His clothing did not match the clothes seen on the
robber, but he was wearing a watch and sneakers that appeared
to be the same as those worn by the robber. The officers
observed Appellant holding what appeared to be a large wad of
                               4
currency. They also saw a different individual put a GPS
tracking device in a storm drain in front of the house, where it
was later found. Appellant then drove away from the house.
The officers attempted to conduct a traffic stop to detain
Appellant, but he fled.

     Officers then obtained a warrant to search 405 60th Street
N.E., a residence where approximately a dozen individuals,
including Appellant, were living at the time. During the search,
officers found, on a washing machine in the house, the pants
with the frayed hem and emblem that the bank robber wore.
The officers also found a bag that looked like the Under
Armour duffel bag carried by the robber. Another resident of
the house told the officers that the bag belonged to “Chuck,” or
Charles Smoot. That resident also informed officers that
Appellant had been in the house that morning, left for a period
of time, and then returned to the house. She told officers that
Appellant was wearing a hat with a skull on it, like the hat worn
by the bank robber.

     Appellant was arrested two days later. At the time of his
arrest, he was wearing gray sneakers with white soles like those
worn by the bank robber. He was also wearing a large black
watch with a white border, like the watch worn by the robber.
A DNA examiner concluded that Appellant’s DNA was on the
Under Armour bag found at 405 60th Street N.E. A
handwriting expert who analyzed the demand notes at the bank
concluded that they were likely written by Appellant.
Appellant’s fingerprints were found on the magazine carried by
the robber, which had been left behind in the bank. In addition,
a witness who knows Appellant identified him as the robber
based on stills from the bank surveillance cameras.

    On July 11, 2017, Appellant was indicted by a grand jury
on one count of bank robbery, in violation of 18 U.S.C.
                                5
§ 2113(a). The next day, Appellant appeared before a
magistrate judge and requested that the judge replace his
counsel, a federal public defender. That request was granted
and, on July 13, a new attorney entered an appearance to
represent Appellant.

     The parties appeared before the District Court on several
occasions during the pendency of the case. During one pretrial
hearing, which took place on September 1, it came to light that
defense counsel may not have communicated the details of a
then-expired plea offer to Appellant. In light of this revelation,
the Government re-extended the plea offer to Appellant. When
Appellant indicated that he was going to reject the offer, the
Government asked the District Court to explain the details of
the plea offer to Appellant on the record to ensure that
Appellant understood the offer and was knowingly and
voluntarily rejecting it. The District Court then explained the
offer and answered Appellant’s questions about it. At the
conclusion of the hearing, Appellant rejected the plea offer.

    On September 15, the parties appeared again before the
District Court. Among other matters, the parties discussed a
pro se motion for substitute counsel filed by Appellant, which
motion the District Court denied.

     Shortly thereafter, Appellant accepted an offer identical to
the offer he had rejected on September 1. On September 20,
Appellant entered a guilty plea before the District Court. The
plea agreement provided that the Government would “cap its
allocution at the low end of the Guidelines,” which it estimated
to be 63 to 78 months. Supplemental Appendix 201–02. The
agreement further provided that Appellant would waive certain
rights, including his right to appeal,
                                6
    except to the extent the Court sentences [Appellant]
    above the statutory maximum or guidelines range
    determined by the Court or [Appellant] claims that [he]
    received ineffective assistance of counsel, in which case
    [Appellant will] have the right to appeal the illegal
    sentence or above-guidelines sentence or raise on appeal
    a claim of ineffective assistance of counsel, but not to
    raise on appeal other issues regarding the sentencing. . . .
    Realizing the uncertainty in estimating what sentence the
    Court ultimately will impose, [Appellant] knowingly and
    willingly waives [his] right to appeal the sentence, to the
    extent noted above, in exchange for the concessions
    made by the Government in this Agreement.

Id. at 204.

     The District Court sentenced Appellant on January 19,
2018. First, the court calculated Appellant’s Federal
Sentencing Guidelines (“Guidelines”) range. The court gave
Appellant the benefit of a three-point reduction for acceptance
of responsibility because he pled guilty. The court then
concluded that Appellant’s Guidelines range was 77 to 96
months, an increase from the parties’ calculation based on a
two-point enhancement for making a death threat during the
offense. See USSG § 2B3.1(b)(2)(F). Although the
Government honored its agreement to recommend 63 months
of incarceration, the District Court sentenced Appellant at the
top of the Guidelines range: 96 months of incarceration, 36
months of supervised release, and a $100 special assessment.
After detailing Appellant’s extensive criminal history, which
included eighteen prior convictions, including seven
convictions for gun crimes, the District Court explained its
sentence as follows:
                               7
   [T]he reason, Mr. Smoot, is not that you haven’t taken
   responsibility . . . . It’s because of what you did and what
   you have done in your past. And the bottom line is,
   sometimes judges need to take a step back and ask
   themselves, what is in the best interest of the community
   to protect people, and this is one of those cases. . . . [A
   longer sentence is] an additional period of time that you
   are not in the community, it’s an additional period of
   time that [you] are not putting people at risk.

Appendix (“A.”) 338.

    Appellant then filed a timely appeal with this court.

                         II. ANALYSIS

A. Ineffective Assistance of Counsel

     Appellant presses three claims of ineffective assistance of
counsel. First, he asserts that his counsel was inadequately
prepared for trial. Second, he contends that his counsel failed
to object to an erroneous, prejudicial finding by the District
Court during sentencing. Third, he alleges that a conflict of
interest existed between him and his counsel.

     A defendant claiming ineffective assistance of counsel
must “show two things: (1) that counsel’s performance was
deficient, and (2) that the deficient performance prejudiced the
defense.” In re Sealed Case, 901 F.3d 397, 404 (D.C. Cir.
2018) (quoting United States v. Anderson, 632 F.3d 1264, 1268
(D.C. Cir. 2011)). When an ineffective assistance of counsel
claim is raised on direct appeal, this court generally remands
the case to allow the district court to develop a factual record
and address the merits of the claim in the first instance. We
decline to remand only if “the record alone conclusively shows
                               8
that the defendant either is or is not entitled to relief.” Id.
(quoting United States v. Bell, 708 F.3d 223, 225 (D.C. Cir.
2013)).

     Appellant’s first claim – that counsel was inadequately
prepared for trial – fails because he has not shown that “there
is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The
evidence against Appellant was overwhelming, including: high
definition surveillance footage from the bank; forensic DNA,
fingerprint, and handwriting evidence; physical evidence taken
from a house where Appellant was residing; and statements
from a witness who identified Appellant as the person in the
surveillance video. GPS trackers led police officers to a
residence where Appellant was staying. Appellant was there
when the officers arrived, he was seen with what appeared to
be a large wad of currency, and he fled when the police officers
attempted to detain him. When he was eventually arrested, he
was wearing a watch and shoes that matched those worn by the
robber at the bank.

     In addition, if Appellant had gone to trial, he would have
lost the benefit of the offense level reduction for acceptance of
responsibility. The three-point reduction lowered his
Guidelines range from 100 to 125 months to 77 to 96 months.
See USSG § 5A. Given the overwhelming evidence against him
and the “somewhat favorable” terms of the plea agreement,
Appellant has failed to show a reasonable probability that, had
counsel been better prepared, he would not have pled guilty and
would have insisted on going to trial. United States v. Hunt,
560 F. App’x 2, 3–4 (D.C. Cir. 2014).

     Appellant’s second ineffectiveness claim is based on an
alleged finding made by the District Court during sentencing
                                 9
that Appellant used a gun during the robbery. Appellant asserts
that his counsel was ineffective for failing to object to this
finding. This claim fails, however, because the District Court
made no such finding. To the contrary, the District Court did
not apply any of the gun enhancements in his Guidelines
computation. And during the sentencing hearing, the District
Court repeatedly said that no one knew whether Appellant was
armed during the robbery. In short, counsel could not have been
ineffective for failing to object to a finding that Appellant was
armed during the robbery because that finding was never made.

     Although it is not entirely clear from his briefing,
Appellant appears to raise a third claim of ineffective
assistance of counsel based on an alleged conflict of interest
with his trial counsel. Conflict of interest claims “are a ‘specific
genre’ of ineffective assistance of counsel claim.” United
States v. Wright, 745 F.3d 1231, 1233 (D.C. Cir. 2014)
(quoting United States v. Bruce, 89 F.3d 886, 893 (D.C. Cir.
1996)). “[I]f a defendant can show that ‘a conflict of interest
actually affected the adequacy of [the attorney’s]
representation,’ he ‘need not demonstrate prejudice in order to
obtain relief.’” United States v. Gray-Burriss, 791 F.3d 50, 62
(D.C. Cir. 2015) (alteration in original) (quoting Cuyler v.
Sullivan, 446 U.S. 335, 349–50 (1980)). Here, Appellant has
failed to even allege that a conflict of interest “actually
affected” his counsel’s performance. Id. at 62–63 (“When a
defendant claims a conflict between himself and his attorney,
he must show that the attorney was ‘forced to make a choice
advancing his own interest at the expense of his client’s.’”
(quoting United States v. Taylor, 139 F.3d 924, 930 (D.C. Cir.
1998))). Therefore, to the extent that Appellant is arguing a
third claim of ineffective assistance based on a conflict of
interest, that claim also fails.
                               10
     Relatedly, Appellant asserts that the District Court erred
by failing to adequately inquire into the alleged conflict of
interest and by failing to grant Appellant’s motion for
substitute counsel. When an indigent defendant seeks
appointment of substitute counsel, a district court is generally
obligated to “engage the defendant in a colloquy concerning
the cause of the defendant’s dissatisfaction with his
representation.” United States v. Graham, 91 F.3d 213, 221
(D.C. Cir. 1996). A defendant challenging the denial of a
motion to substitute counsel must show that he was not
“afforded effective representation” in order to show that denial
of the motion was prejudicial. Id. (quoting United States v.
Zillges, 978 F.2d 369, 372 (7th Cir. 1992)). As noted above,
the record conclusively shows that Appellant was not
prejudiced by his counsel’s performance. Therefore,
Appellant’s claims the District Court should have inquired
more deeply into his counsel’s performance and should have
granted his motion for substitute counsel also fail. See id. at
222 (“[Appellant’s] claim to substitute counsel must fall with
his claims to have received ineffective assistance from his
court-appointed lawyer.”).

B. Judicial Participation in Plea Negotiations

      Appellant also asserts that the District Court
impermissibly participated in plea negotiations in violation of
Rule 11. See Fed. R. Crim. P. 11(c)(1) (“The court must not
participate in [plea] discussions.”). This court has held that a
trial judge may violate Rule 11 “even in cases where the district
judge technically did not participate in discussions with a view
toward a plea agreement.” United States v. Baker, 489 F.3d
366, 371 (D.C. Cir. 2007) (quoting United States v. Cannady,
283 F.3d 641, 644 (4th Cir. 2002)).
                               11
     Because Appellant did not object to the Rule 11 violation
at the time when it allegedly occurred, he cannot succeed on
this claim unless we find plain error. See United States v.
Davila, 569 U.S. 597, 608 (2013); see also id. at 608–11
(rejecting the argument that judicial participation in plea
bargaining claims under Rule 11 should be treated differently
than other Rule 11 claims). “[A] defendant who seeks reversal
of his conviction after a guilty plea, on the ground that the
district court committed plain error under Rule 11, must show
a reasonable probability that, but for the error, he would not
have entered the plea.” Id. at 608 (alteration in original)
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004)).

     Appellant has failed to show plain error. To the contrary,
the record is clear that the District Court did not violate Rule
11. During the hearing in question, the District Court merely
explained the terms of the Government’s plea offer and
answered Appellant’s questions about the offer. None of the
District Court’s statements during that hearing could
reasonably be viewed as an attempt to influence or coerce
Appellant, nor did these statements otherwise constitute
impermissible participation in the plea negotiation.

     Appellant argues that the District Court attempted to
convince him to take the plea offer by going “further than just
an observation when it actually argued with the appellant about
the favorability of the plea terms.” Appellant’s Br. 44. But the
transcript from the September 1 hearing does not support this
claim. Rather, what the record shows is that the District Court
accurately characterized the offer as “a slightly more favorable
plea offer” – as a result of the removal of a mandatory forfeiture
provision – than the Government’s prior offer. A. 119. The
District Court’s characterization of the pending offer as
“slightly more favorable” was a description, not an
                               12
endorsement. And the trial judge never said anything to press
Appellant to accept the plea offer. Indeed, Appellant rejected
the offer after the trial judge explained it. In these
circumstances, we reject the suggestion that the District Court
impermissibly participated in plea bargaining.

     Appellant also argues that the District Court “entered into
the plea negotiations by describing the government intentions
and predicting what the government wished to offer and what
it would not offer in further negotiations.” Appellant’s Br. 44.
Without question, certain predictions by a trial judge – for
example, that the Government will not make a better offer, or
that a defendant will receive a higher sentence if convicted
following trial – might be viewed as coercive. See, e.g., Baker,
489 F.3d at 374. However, in this case, the statement that
Appellant characterizes as a “predict[ion]” was merely a
restatement by the District Court of the Government’s position
that it would not offer the kind of global plea agreement that
Appellant had requested. See A. 129 (“That’s your answer, Mr.
Smoot, that the government is not prepared to do any more than
it’s offered to you today.”). Such a statement does not
constitute improper judicial participation in plea bargaining.

     Furthermore, in order to establish plain error, Appellant
must show that he was prejudiced by the District Court’s
statements. As noted above, Appellant rejected the plea offer
during the September 1, 2017, hearing, and then accepted the
proposed deal more than two weeks later. Appellant does not
claim that he accepted the plea because of anything said or done
by the trial judge. And there is nothing in the record to indicate
that Appellant was in any way coerced by the District Court.
He acted of his own volition when he accepted the plea deal.
Therefore, we find no prejudice to Appellant’s decision to
plead guilty. See Davila, 569 U.S. at 601.
                              13
C. Abuse of Discretion at Sentencing

      Appellant also argues that the District Court abused its
discretion at sentencing by relying on Appellant’s prior
weapons convictions in crafting the sentence. However, this
claim is covered by the appeal waiver in Appellant’s plea
agreement. It is well settled that such waivers are enforceable
“if the defendant has the requisite awareness and understanding
of ‘the risks involved in his decision.’” In re Sealed Case, 901
F.3d at 400 (quoting United States v. Guillen, 561 F.3d 527,
529 (D.C. Cir. 2009)). Appellant has not argued that he lacked
the requisite understanding of the risks involved, nor has he
otherwise challenged the validity of his appeal waiver.
Therefore, Appellant waived his right to raise this claim on
appeal.

                      III. CONCLUSION
     For the reasons stated herein, the conviction and sentence
are affirmed.

                                                    So ordered.
