     Case: 17-50889      Document: 00514997023         Page: 1    Date Filed: 06/14/2019




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


                                      No. 17-50889                        FILED
                                                                      June 14, 2019
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

              Plaintiff - Appellee

v.

MARCELINO MARTINEZ, also known as Nino, also known as Marcelino
Martinez, Jr.,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:17-CR-53-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM:*
       Appellant Marcelino Martinez appeals his guilty plea conviction for
conspiracy to posses with intent to distribute methamphetamine. Martinez
contends that the district court violated Federal Rule of Criminal Procedure
11(c)(1) when it improperly involved itself in plea negotiations. Because
Martinez has failed to show a reasonable probability that, but for the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                      No. 17-50889
participation, he would not have entered the plea, he has not demonstrated
plain error that affected his substantial rights. We affirm.
                                             I.
       Between October 2014 and February 21, 2017, Martinez conspired with
several individuals to possess with intent to distribute methamphetamine.
Martinez would direct his accomplices to pick up multi-ounce quantities of
methamphetamine from his supplier in Katy and Houston, Texas to be
redistributed in Central Texas. Martinez instructed his co-conspirators where
and when to conduct the deliveries and directed couriers and distributors to
specific stash houses. Martinez was also involved in the financial transactions,
directing his co-conspirators to receive and deliver proceeds from the drug
transactions.
       On February 21, 2017, Martinez and six co-defendants were charged
with one count of conspiracy to possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846,
and five counts of possession with intent to distribute methamphetamine in
violation of § 841(a)(1). The district court entered a scheduling order setting a
hearing on pre-trial motions, followed by jury selection and trial on May 1,
2017. That order set a plea agreement deadline of April 28, 2017 pursuant to
United States v. Ellis. 1 On April 19, 2017, Martinez signed a Rule 11(c)(1)(C)
plea agreement, pleading guilty to the conspiracy count and agreeing to a
sentence of 151 months, pending the court’s approval.
       On April 26, the government filed an assented-to motion for a
continuance, advising the court that Martinez had changed his mind and had




       1 547 F.2d 863 (5th Cir. 1977). The Ellis order provided, in relevant part, “any plea
bargain or plea agreement entered into by the parties in this cause shall be made known in
writing to this Court on or before April 28, 2017.”
                                             2
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                                        No. 17-50889
indicated to the government that he wanted to proceed to trial. 2 The court held
a docket call on April 28, 2017 (pursuant to the scheduling order). During that
call, the court informed Martinez that the plea agreement deadline expired at
5:00 p.m. that day and discussed setting a trial date. Although the court
contemplated the possibility of postponing the trial by a few weeks to wait for
one of Martinez’s co-defendants to enter her guilty plea, the court decided to
set the trial for May 22. If Martinez decided to enter a plea before 5:00 p.m.,
that trial date would be set aside.
       The court then started to excuse Martinez. At this point, Martinez asked
the court if he could request new counsel, which the court denied, and then
Martinez asked what an “Ellis deal” was. The district court counseled that
Martinez’s lawyer could explain what an Ellis order was, but briefly told
Martinez that it was a deadline for entering into a plea agreement. 3 Martinez
voiced concern that he did not understand why his first lawyer had been
removed from the case, and the court explained that the Federal Public
Defender who had initially been appointed was forced to withdraw because of
a conflict of interest. 4 The court explained the appointment process, then told
Martinez:
       The bottom line is, Mr. Martinez, you’ve got a couple of hours today
       to decide if you wish to plead or not. And if you stay and want a
       trial, which is your constitutional right, there’s no problem. I’ve

       2  The government informed the court that one of Martinez’s co-defendants, Brandy
Meeks, had her first appearance in front of a magistrate judge the same day Martinez
indicated he wanted to proceed to trial. Because Meeks had not yet decided whether to enter
a plea or proceed to trial, the government sought a continuance to allow her counsel to
prepare for trial should both Martinez and Meeks be tried jointly.
        3 You have a certain amount of time to negotiate a plea with the government, if you

wish to. If you do not get an agreement, then you go to trial. But there are consequences for
that that the law has placed here. Usually it is a three-level increase if you go to trial and are
found guilty under the guideline system. It’s not always. It depends on the evidence one way
or the other.”

       4   The court appointed attorney John Butler to take over representation.
                                                3
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                                       No. 17-50889
       just gotta set it. I just have lots and lots of trials. I’ve got criminal
       trials set all the way through this year into next year. Many of
       them are large. Most of them won’t go to trial, but I don’t know
       which ones will and which ones won’t, so I have to arrange for the
       ability to try the case. And that’s where you are.

       It doesn’t look very good when the other Martinez and Padilla,
       Meeks and Welsh and Hinds [Martinez’s co-defendants] have
       already entered pleas because that makes all of them witnesses, if
       they wish to testify or the government wish [sic] for them to testify.
       But that’s just a factor that you could talk intimately with Mr. --
       with your lawyer. But go ahead and talk to him and talk to him
       about the Ellis order. And just like the gentleman beforehand, if
       he enters a plea today before 5:00 where I can cut the jury numbers
       down, then he’s still within the Ellis order. But after today, he’s
       not.

       Later that day, Martinez signed a Rule 11(c)(1)(C) “amended” plea
agreement providing for a sentence of 151 months pending the court’s
approval. 5 That same day, Martinez pleaded guilty before the magistrate
judge, confirming that he had read the agreement, discussed it with counsel,
and agreed to its terms.
       Following the recommendation of the magistrate judge, the district court
accepted the guilty plea but reserved acceptance of the agreement until
sentencing. Probation prepared a PSR calculating a Guidelines range of 360
months to life based on an attributable drug quantity of 104 kg of
methamphetamine. On July 14, 2017, the district judge held a sentencing
hearing and rejected the plea agreement. 6 The district court expressed its
concern with the agreement:


       5 The only difference between the April 28 plea agreement and the April 19 plea
agreement was a correction to the statutory maximum for a violation of 21 U.S.C. §
841(b)(1)(A).
       6 At that hearing, the court probed the government’s decision to agree to a sentence of

151 months for an offense with a Guidelines range of 360 months to life: “I have an 11(c)(1)(C)
sentence for 151 months, and I’ll hear from the government on how that’s possible.” The
                                              4
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                                       No. 17-50889
       This was a wire case. There was information and months and
       months of expense to the government on the activities. It just
       seems to me unfathomable that you can make a difference between
       five and 104 guessing. But what is more incredible is to try to tie
       my hands to a sentence, which I will not do.

The district court then pressed the government on why it chose to execute a
Rule 11(c)(1)(C) agreement. 7 The court then stated:
       It was a wire. It didn’t make any difference if he’s going to plea or
       not. It’s a three or four-day case. He’s going to be found guilty. It
       doesn’t make any difference one way or the other. So you were
       tieing [sic] my judgment up simply to avoid a trial?

       ...

       But here, I’m looking at a life sentence. . . . When I authorize and
       --authorized the wire and the extensions to the wire and all of the
       expense it is to the government and then, you come up with a
       disparity like this and you tie my hands or the judge’s hands, I
       want to know why. It’s just a mistake. It was just a mistake. It’s a
       bad mistake. If it’s intentional, it’s worse.

The district court declined to accept the plea and set the case for trial.
       On July 26, 2017, the government filed a second superseding
information, charging Martinez with conspiracy to possess with intent to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 846. The statutory maximum for § 841(b)(1)(C) was 20 years,
as opposed to Martinez’s initial plea to the § 841(b)(1)(A) violation, which



government explained that it thought it would have been difficult to prove the drug quantity
reflected in the PSR based on the witness testimony available. The government agreed to a
plea based on a drug quantity of between one and five kilograms (rather than the 104 kg
calculated in the PSR).
        7 “Well, if you recall, this was a very late plea. We thought it was going to be on the

Wednesday before the docket call. I know the Court expressed some frustration on the Friday
that Mr. Butler and Ms. Fernald appeared. . . . I think Mr. Martinez gave Mr. Butler some .
. . unanticipated resistance at the eleventh hour. We thought it was going to be a plea the
whole time, or I did . . .”
                                              5
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                                       No. 17-50889
carried a statutory maximum of life. Martinez pleaded guilty without the
benefit of a plea agreement before the magistrate judge on July 27, 2017. On
September 29, 2017, the district court sentenced Martinez to the statutory
maximum of 240 months followed by five years supervised release. This appeal
followed.

                                              II.

       Martinez did not object to the district court’s alleged improper
participation in plea negotiations, so we review for plain error. 8 To prevail,
Martinez must show (1) error (2) that is clear or obvious and (3) that affects
his substantial rights. 9 “Even then, the court may correct the error ‘only if the
error seriously affects the fairness, integrity or public reputation of judicial
proceedings.’” 10
       Martinez complains of two separate instances of alleged improper
participation by the district court in the plea negotiations. He argues that
during the April 28, 2017 docket call, the district court improperly opined on
Martinez’s likely success at trial by noting that “it doesn’t look very good” in
light of his co-defendants’ decisions to plead guilty and their potential to serve
as witnesses against Martinez. Martinez also points to the district court’s
description of the three-level Guidelines increase that generally accompanies
a conviction after trial. He asserts that his decision to plead the same day as
the docket call demonstrates the coercive nature of the district court’s
comments.




       8  United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009).
       9  United States v. Draper, 882 F.3d 210, 215 (5th Cir. 2018) (citing United States v.
Jones, 873 F.3d 482, 497 (5th Cir. 2017)).
        10 Jones, 873 F.3d at 497 (quoting United States v. Moreno, 857 F.3d 723, 727 (5th Cir.

2017)).
                                              6
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                                        No. 17-50889
      Martinez also contends that the district court’s comments at the July 14,
2017 sentencing hearing were error. Specifically, Martinez asserts that the
district court again improperly entered the negotiations when it suggested that
Martinez was “going to be found guilty” and expressed concern with the 151-
month recommendation given the Guidelines range and the substantial
resources involved in the wiretap investigation. Martinez highlights that the
district court stated Martinez was “looking at a life sentence.” Martinez
contends that the errors are plain given existing precedent, his substantial
rights were affected because he can show a reasonable probability he would
have proceeded to trial absent the comments, and the errors impacted the
integrity of the judicial proceedings.
      The government concedes that the district court’s statement that it did
not “look very good” for Martinez may have been a technical violation of Rule
11(c)(1). However, the government suggests that it was an isolated comment
made in the context of explaining the court’s scheduling concerns and
answering Martinez’s questions about the meaning of an Ellis order. The
government also asserts that Martinez failed to show that he would not have
pleaded guilty absent the district court’s comments. With respect to the
statements at the sentencing hearing, the government contends that while the
court’s statements may have been error had they been made prior to a
negotiated plea agreement, they were not error where Martinez had already
signed an agreement.
      Federal Rule of Criminal Procedure 11(c)(1) provides that “[a]n attorney
for the government and the defendant’s attorney, or the defendant when
proceeding pro se, may discuss and reach a plea agreement. The court must
not participate in these discussions.” 11 Rule 11 allows the district court to


      11   Fed. R. Crim. P. 11(c)(1).
                                             7
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                                        No. 17-50889
accept or reject a plea agreement. 12 In its consideration of the plea agreement,
the district court is required to “address the defendant personally in open court
and determine that the plea is voluntary and did not result from force, threats,
or promises” and to “determine that there is a factual basis for the plea.” 13 This
circuit has “characterized Rule 11’s prohibition of judicial involvement as a
‘bright line rule’ and ‘an absolute prohibition on all forms of judicial
participation in or interference with the plea negotiation process.’” 14 The
prohibition on judicial participation in plea negotiations (1) “diminishes the
possibility of judicial coercion of a guilty plea,” (2) preserves the judge’s
impartiality by preventing the judge from having a stake in a particular
agreement, and (3) prevents a “misleading impression” of the judge’s role in
the proceedings, protecting the judge’s position as a neutral arbiter. 15
       This court has rejected a “narrow view” of Rule 11 that would limit
violations to “discrete categories of factual circumstances where the courts
have previously found [a violation],” instead making clear that “Rule 11 and
its interpretive case law unmistakably prohibit all forms of participation.” 16 At
the same time, previous “caselaw does provide some guidance.” 17 “For instance,



       12 Fed. R. Crim. P. 11(c)(4)-(5).
       13 Fed. R. Crim. P. 11(b)(2)-(3).
       14 United States v. Pena, 720 F.3d, 561, 570 (5th Cir. 2013) (internal citations omitted).
       15 United States v. Rodriguez, 197 F.3d 156, 158–59 (5th Cir. 1999) (quoting United

States v. Daigle, 63 F.3d 346 (5th Cir. 1995) (internal quotation marks omitted)).
       16 Rodriguez, 197 F.3d at 159 (rejecting government’s argument that improper

participation was limited to previously defined categories, “namely cases where the court
injected terms into the agreement, changed the terms of the agreement, or discussed probable
sentences”).
       17 Draper, 882 F.3d at 215. This court has also found a Rule 11 violation based on

improper participation from a district court’s statement in an off-the-record conference that
it “would most likely follow any sentence recommendation by the government,” Daigle, 63
F.3d at 348–49; a district court’s statement that “[r]ight now [the defendant is] looking at five
years minimum and in about 30 minutes [i.e. if he did not enter the plea] he’s going to be
looking at ten years minimum,” Rodriguez, 197 F.3d at 158–60; and a district court’s
statement that “the best chance[] here, quite frankly, for him is the plea of guilty and the
                                               8
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                                      No. 17-50889
judges clearly violate Rule 11(c)(1) where their statements could be construed
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.” 18 The motives of the district court are irrelevant, and this court
has “not hesitated to find a Rule 11 error even when the court’s participation
is minor and unintentional.” 19
       If the district court’s statements constituted clear and obvious Rule 11
error, the court then determines whether the error affected the defendant’s
substantial rights. 20 “[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.” 21 Violation of Rule 11(c)(1) does not require
automatic vacatur of the guilty plea—“vacatur of the plea is not in order if the
record shows no prejudice to [defendant’s] decision to plead guilty.” 22 “[T]he
primary focus of [the] prejudice analysis must be the period between the
district court’s participation and [the defendant’s] guilty pleas, [but the] review
is also ‘informed by the entire record.’” 23
       The April 28 docket call statements made by the district court were made
in the context of responding to Martinez’s confusion about the meaning of an




concurrent sentencing [of the charges],” United States v. Ayika, 554 F. App’x 302, 303 (5th
Cir. 2014) (per curiam).
       18 Draper, 882 F.3d at 215.
       19 Ayika, 554 F. App’x at 305; see also Pena, 720 F.3d at 571 (“Given the sanctity

of Rule 11's absolute prohibition on any form of judicial involvement in plea negotiations, we
conclude that, albeit unintentionally, the district court here stepped over the line and
violated Rule 11 . . .”) (emphasis added).
       20 Pena, 720 F.3d at 573.
       21 Id. (internal quotation marks and citation omittd).
       22 United States v. Davila, 569 U.S. 597, 601 (2013).
       23 Pena, 720 F.3d at 574 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83

(2004)).
                                              9
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                                         No. 17-50889
Ellis order. 24 The district court attempted to end the exchange after setting a
trial date, but was stopped by Martinez’s request for new counsel and query
about the Ellis order. The district court directed Martinez to speak to his new
counsel, explained why the Federal Public Defender had been removed from
the case, and emphasized that the timing of the Ellis order meant that
Martinez had until 5:00 p.m. to consider entering a plea. Even if the district
court’s error in opining on the likelihood of success at trial was clear and
obvious, Martinez has not shown an adverse effect on his substantial rights.
While a close temporal proximity between the timing of the plea and the
district court’s participation can support a finding of prejudice, 25 temporal
proximity is not dispositive here. Given Martinez’s misunderstanding of the
meaning of the Ellis order, the timing of his plea is attributable to the district
court’s explanation of the deadline, rather than any improprietous suggestion
about Martinez’s likelihood of success at trial. Ultimately, Martinez accepted
a favorable Rule 11(c)(1)(C) plea that limited his potential sentence to 151
months on a charge that carried a statutory maximum of life imprisonment.
The benefit of that plea agreement, taken together with the imminent
expiration of the Ellis order deadline, likely influenced Martinez’s decision to
enter the plea. Martinez has not shown a reasonable probability that but for
the district court’s statements on the docket call he would not have entered the
plea.



        24  See e.g., United States v. Larrier, 648 F. App’x 441, 443 (5th Cir. 2016) (“The district
court’s comments, when read in context, do not reflect obvious improper participation in a
plea discussion. The challenged remarks made by the district court were made in the context
of answering Larrier’s inquiries, addressing her misunderstandings about the guilty-plea
process, and ensuring that she understood her choice of pleading guilty or going to trial. The
comments did not create an appearance of impartiality or coercion.”).
         25 Davila, 569 U.S. at 611 (comparing a plea “soon after” judicial participation with a

three-month delay); Pena, 720 F.3d at 574 (holding that the fact defendant pleaded guilty
“[j]ust five days later” “support[ed] a finding of prejudice”).
                                                10
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                                          No. 17-50889
       With respect to Martinez’s challenge to the district court’s statements at
his first sentencing hearing on July 14, 2017, 26 those statements were made
after Martinez had entered the plea and signed the plea agreement. This court
has emphasized that the timing of the district court’s participation is
important: “We have noted the distinction between a sentencing court’s
comments before the parties have disclosed the terms to the court and the
court’s statements after this time.” 27 Once a plea agreement is disclosed in open
court the district court is required to examine the plea agreement to determine
whether it is voluntary and has a sound factual basis. 28 “The commentary to
Rule 11 and [this circuit’s] previous decisions make it clear that the district
court is expected to take an active role in evaluating a plea agreement, once it
is disclosed.” 29 However, while “Rule 11 requires that a district court explore a
plea agreement once disclosed in open court . . . it does not license discussion
of a hypothetical agreement that it may prefer.” 30
       In Crowell, the court distinguished between comments made in the
context of the district court’s evaluation of a first plea agreement presented by
the parties and comments made after the rejection of the first plea agreement,
but before the second plea agreement was in its final form. 31 While the content
of the comments was similar—the district court opined on the likely sentence
if Crowell were convicted—the timing was determinative: “The fact that this


       26   Specifically, the district court stated: (1) “It was a wire. It didn’t make any difference
if he’s going to plea or not. It’s a three or four-day case. He’s going to be found guilty. It doesn’t
make any difference one way or another.” and (2) “But here, I’m looking at a life sentence.”
Martinez also challenges the court’s admonitions that it had authorized substantial
expenditures for the wiretap and that the government was tying the court’s hands to a
sentence well below the guideline range.
         27 Pena, 720 F.3d at 572.
         28 Id. at 570 (citing Fed. R. Crim. P. 11(b)(2) – (3)).
         29 United States v. Crowell, 60 F.3d 199, 204 (5th Cir. 1995).
         30 United States v. Miles, 10 F.3d 1135, 1140 (5th Cir. 1993) (finding that the “district

court’s comments went beyond exploring the presented agreements”).
         31 Crowell, 60 F.3d at 204.

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                                     No. 17-50889
comment was injected into the discussions while the parties were still
preparing the second agreement is critical. It is precisely this type of
participation that is prohibited by Rule 11.” 32 In other words, statements made
in considering a plea agreement presented by parties are treated differently
than statements made when the parties are still negotiating. Similarly, in
Pena, the court noted that “the fact that the court made the statements while
plea negotiations between Pena and the government were ongoing is crucial.” 33
So the “proper inquiry is whether the district court was actively evaluating a
plea agreement, as the court is required to do, or whether the court is
suggesting an appropriate accommodation for a subsequent plea agreement,
something this court found prohibited in Miles.” 34
      The statements at issue here occurred in connection with the district
court’s evaluation of Martinez’s first plea agreement. Although it is true that
the court rejected that agreement, meaning that further plea negotiations took
place after the comments were made, these statements did not constitute clear
and obvious error because Martinez had made the decision to plead guilty and
at that point, “the district court is expected to take an active role” in evaluation
of the agreement. 35 “The triggering event is the defendant's decision to enter a
guilty plea—whether with an agreement or not.” 36 Because the statements
were made after Martinez’s decision to plead guilty, the district court was not
opining on the likely or correct sentence. 37



      32  Id.
      33  Pena, 720 F.3d at 572.
       34 United States v. Smith, 417 F.3d 483, 488 (5th Cir. 2005) (internal citation and

quotation marks omitted); see also United States v. Hemphill, 748 F.3d 666, 673 (5th Cir.
2014) (distinguishing between comments made during the plea colloquy and comments made
before defendant accepted the government’s offer).
       35 Hemphill, 748 F.3d at 673.
       36 Draper, 882 F.3d at 215 n.8.
       37 Crowell, 60 F.3d at 204.

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                                 No. 17-50889
                                              III.
      Because Martinez has not shown that the district court plainly erred, the
district court’s judgment is affirmed.




                                         13
