                                                                       [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                       No. 10-10257                     MARCH 29, 2011
                                                                          JOHN LEY
                                 ________________________                   CLERK

                             D.C. Docket No. 1:08-cr-20412-AJ-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                              Plaintiff - Appellee,

versus

DERRICK N. MILLER,

lllllllllllllllllllll                                              Defendant - Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                       (March 29, 2011)

Before BARKETT and HULL, Circuit Judges, and SCHLESINGER,* District Judge.

PER CURIAM:

         Derrick Miller appeals his conviction after pleading guilty to being a felon

         *
          Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation.
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, he

argues that the district court participated in plea negotiations, in violation of Rule

11(c)(1) of the Federal Rules of Criminal Procedure.

      On the eve of trial, the court held an evidentiary hearing on Miller’s motion

to dismiss the indictment based on the government’s destruction of evidence in the

case. In the middle of the hearing, after several witnesses had testified that

evidence had been destroyed, and during a break in the proceedings, the

government offered to dismiss four counts of the five-count indictment if Miller

would agree to plead guilty to the remaining count (Count Five). Shortly

thereafter, at 5:15 p.m., the court commenced a plea hearing. During the hearing,

Miller twice advised the court that he wished to plead guilty to Count Five of the

indictment but then equivocated. The court then advised Miller that if he wished

to accept the government’s offer to plead guilty to only Count Five, he would have

to do so that evening; and that if he sought to plead guilty the following day or at

any point in the future, the court would only accept a plea to the entire indictment.

      As an initial matter, we recognize that the trial court has discretion to set

time limits for the acceptance of pleas, but we find the court’s deadline under

these circumstances troubling. Miller was afforded only a limited amount of time

to consider the government’s offer before the plea hearing began, and the

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difficulty of his otherwise weighty decision was exacerbated by his still-pending

motion to dismiss the indictment, which was based on the government’s

admittedly improper destruction of DNA evidence. Given these circumstances

and the late hour of the plea hearing, we think that, rather than imposing an

imminent deadline, the more prudent course of action would have been for the

court to simply conduct the plea hearing the following day.

      In the district court, Miller three weeks later moved to withdraw his guilty

plea based on the erroneous advice of counsel, not the nature of the Rule 11

colloquy. Thus, although we had the issue briefed, we still review for plain error.

And we conclude that, while a close question, the district court’s comments were

not plainly erroneous or participatory under the particular facts and circumstances

of this case, but rather constituted a permissible exercise of its discretion to

manage its trial docket. See United States v. Gamboa, 166 F.3d 1327, 1330–31

(11th Cir. 1999). Accordingly, we affirm.

      AFFIRMED.




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