                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4418


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHRISTOPHER STEWART WILSON, a/k/a Chris,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:12-cr-00353-BO-1)


Argued:   October 29, 2015               Decided:   December 16, 2015


Before MOTZ, KING, and THACKER, Circuit Judges.


Affirmed in part and vacated and remanded by unpublished per
curiam opinion.


ARGUED: James C. White, LAW OFFICE OF JAMES C. WHITE, P.C.,
Chapel Hill, North Carolina, for Appellant.      Phillip Anthony
Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.     ON BRIEF: Michelle M. Walker, LAW
OFFICE OF JAMES C. WHITE, P.C., Chapel Hill, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     In November 2011, without a warrant, police surreptitiously

placed a GPS tracker on a car belonging to Christopher Wilson, a

“person of interest” in several robberies.                     Information gathered

from the GPS tracker led to Wilson’s arrest for a series of

robberies.        A federal grand jury subsequently indicted Wilson on

one count of conspiracy to interfere with commerce by threats

and violence, as well as multiple counts of interference with

commerce     by       threats    and    violence,       possessing   a   firearm    in

furtherance of a crime of violence, bank robbery, and aiding and

abetting these offenses.

     Wilson moved to suppress the evidence resulting from the

warrantless       use    of     the   GPS    tracker.     He   argued    that   United

States v. Jones, 132 S. Ct. 945 (2012), decided after police

placed the tracker on his car, rendered the search illegal.                        The

district court denied the motion to suppress, reasoning inter

alia that the good-faith exception to the exclusionary rule made

the evidence obtained in the search admissible.

     Wilson then signed a plea agreement.                   In it, he pled guilty

to some of the counts in the indictment as well as two counts

added   in        a     superseding         criminal    information,      which    the

Government filed as part of the plea agreement.                          However, at

Wilson’s Rule 11 hearing, his counsel notified the court that

Wilson no longer wanted to agree to the negotiated plea.

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     In    response,   the   district   court   strongly   and   repeatedly

urged Wilson to plead guilty pursuant to the agreement.                The

judge opined that Wilson’s experience in state court “may be

giving [him] a false sense of security,” and that this was “a

situation where someone has no comprehension of how deep the

hole is.”     The court addressed Wilson directly, asking “What’s

your problem?    I mean, you are facing an ocean full of time and

. . . you think you are going to get out?          You are not going to

get out.    I mean, what’s your problem?”        The court described the

negative results of going to trial in various ways:

     [N]o one is going to let you, unless you insist,
     testify because you are an armed robber and that’s
     your career . . . these other three guys, who are your
     allies, are going to line up to get Rule 35’s and get
     out of jail, and they’re going to testify against you
     and you are going to be hung out with whatever it is,
     a hundred year sentence.

The judge also told Wilson that, if convicted at trial, “[he]

[would] be gone forever,” and suggested that he would die in

prison.

     Wilson repeatedly told the court that he had thought his

decision through and did not want to agree to the negotiated

plea.     When the district court asked Wilson if he had thought

through the consequences of forgoing the plea deal and going to

trial, Wilson replied, “Yes, sir.”        Instead of permitting Wilson

to make this choice, the court continued the hearing for two



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weeks    so    that    Wilson       could       “take      a   cooling      off    period”       and

“decide[] whether or not this is a bad deal.”

     Ten days later, Wilson’s counsel filed a motion to withdraw

as   counsel        because    of        a    “breakdown        of    the     attorney-client

relationship,”         which       the       court      granted.       Four      months    later,

after Wilson had been appointed new counsel, the district court

conducted      the     continued         Rule       11    hearing.       Due      to    equipment

failure,      no    transcript       of       this       hearing     exists.       Pursuant       to

Federal Rule of Appellate Procedure 10(c), the district court

approved       a    statement        of       the       proceedings     submitted         by     the

parties.

     The       approved      (but     extremely           brief)      statement        describing

this second hearing does not indicate that the court informed

Wilson of his right to plead not guilty, his right to a jury

trial,    or       several    of    the       other      requirements       of    the     Rule    11

colloquy.          Notably, the statement does not indicate that the

judge ascertained whether Wilson’s plea was voluntary.                                         While

the statement asserts that Wilson’s counsel “recalls that the

Appellant acknowledged that he understood the terms of the plea

agreement and appeal waiver,” it also states that Wilson himself

“does    not       recall    being       informed         of   or   acknowledging         that    he

understood the terms of the plea agreement or appeal waiver.”

The record contains no affidavits from any of the individuals

actually present at the hearing.

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        At       this    second     hearing,      Wilson     pleaded     guilty     to       four

counts of bank robbery and conspiracy to commit bank robbery and

possessing a firearm as a felon.                      According to the Government’s

statements at oral argument, this plea agreement differed from

the   original           plea    agreement       in   that    it    contained      two   fewer

counts       of    bank       robbery.      After     the    district    court     sentenced

Wilson to 293 months’ imprisonment, he timely noted this appeal,

in which he argues that the trial court’s participation in his

plea discussion constituted plain error under Rule 11(c) and so

requires that we vacate his plea. *

        Rule 11(c) provides that “[a]n attorney for the government

and the defendant’s attorney . . . may discuss and reach a plea

agreement,”             but    “[t]he    court    must      not    participate     in    these

discussions.”             Fed. R. Crim. P. 11(c)(1).                  The prohibition on

judicial involvement furthers “three principal interests:                                     it

diminishes         the        possibility   of    judicial         coercion   of    a    guilty

plea;       it    protects        against    unfairness       and     partiality        in   the

judicial process; and it eliminates the misleading impression

that the judge is an advocate for the agreement rather than a


        *
        Wilson also initially appealed the denial of his
suppression motion.   However, this court has already concluded
that the good-faith exception does indeed render admissible
evidence obtained by warrantless GPS trackers prior to Jones.
See United States v. Stephens, 764 F.3d 327, 338 (4th Cir.
2014).    We therefore affirm the district court’s denial of
Wilson’s suppression motion.


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neutral arbiter.”          United States v. Bradley, 455 F.3d 453, 460

(4th Cir. 2006) (quoting United States v. Cannady, 283 F.3d 641,

644–45 (4th Cir. 2002)) (internal quotation marks omitted).

      Because Wilson did not object to the judge’s involvement

during    the    plea    discussions,       we    review      his    claim       under     the

rigorous plain error standard.              See United States v. Sanya, 774

F.3d 812, 815 (4th Cir. 2014).                  Wilson must establish that “(1)

the asserted violation of Rule 11(c)(1) is error, (2) the error

is plain, and (3) the error affected [his] substantial rights.”

Bradley, 455 F.3d at 461.               To establish that the error affected

his     substantial       rights,       Wilson     must       show     “a        reasonable

probability that, but for the error, he would not have entered

the plea.”       United States v. Davila (Davila I), 133 S. Ct. 2139,

2147 (2013).      If these three conditions are met, we can exercise

our “discretion to notice a forfeited error, but only if (4) the

error    seriously       affects    the     fairness,       integrity,           or    public

reputation of judicial proceedings.”                Bradley, 455 F.3d at 461.

      The Government rightly concedes that the district court’s

participation       in     Wilson’s       plea     discussions         violated           Rule

11(c)(1) and that this error was plain.                        Thus, we need only

consider    the    third    and    fourth       prongs   of    plain   error           review:

whether    the    error     affected      Wilson’s       substantial         rights       and

whether    it     seriously        affected       the    integrity          of        judicial

proceedings.        Because       the    record     lacks     any    indication           that

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Wilson’s eventual guilty plea was voluntary, we conclude that

Wilson has satisfied both prongs.

       At the initial Rule 11 hearing, the district court strongly

urged Wilson to agree to the negotiated plea deal.                                The judge

commented      on    the     strength        of     the    Government’s           evidence,

questioned     Wilson’s         reasons       for    proceeding       to      trial,    and

criticized Wilson’s rejection of the plea agreement.                           Thus, this

clearly “is not a case involving a single or even a few brief

remarks by the court.”               Braxton, 784 F.3d at 243.               Nor were the

remarks impartial, as in Cannady, 283 F.3d at 645, where the

judge “never suggested that Cannady should plead guilty” but

only   “requir[ed]       Cannady       to   make    a   decision    --       either    plead

guilty   or    go   to     trial.”          Instead,      in   response      to    Wilson’s

rejection of the plea deal, the district court rebuked him and

ended the hearing.              Although the record indicates that Wilson

was calm and cogent at the hearing, the judge expressly said

Wilson needed a “cooling off period” -- that is, a period during

which Wilson would change his mind and accept the plea deal.

When the second hearing occurred months later, Wilson did accept

a plea deal.

       Importantly, in circumstances that are hopefully unique to

this   case,    nothing         in   the    record      establishes      that      Wilson’s

ultimate    guilty       plea    was    voluntary.         Although      a    defendant’s

assertion of voluntariness during the Rule 11 colloquy will not

                                              7
by   itself    “dispel    [our]   concern”   that    judicial     participation

rendered a plea involuntary, Braxton, 784 F.3d at 245, such an

assertion does inform our inquiry.               See, e.g., Davila I, 133

S. Ct. at 2149-50.        In this case, we do not have the transcript

from Wilson’s second Rule 11 hearing, and the cursory statement

of the proceedings leaves much to be desired.

       When forced by equipment failure to generate the record

themselves, the parties submitted a single paragraph describing

the hearing.      The statement does not indicate whether a proper

Rule    11     colloquy    took    place,    let     alone      whether    Wilson

voluntarily entered his plea.          One of the few specifics it does

relate is that Wilson does not remember being informed of the

terms of the plea agreement at the hearing.                     The hearing, as

described by the parties, did nothing to combat the effect of

the earlier Rule 11 violation, and leaves substantial doubt as

to the voluntariness of the ultimate plea.                   Cf. Braxton, 784

F.3d at 245 (“[T]he plea colloquy in this case only exacerbates

the [Rule 11(c)] error.”).

       The record thus shows that Wilson appeared at his first

Rule 11 hearing adamant about refusing the Government’s deal and

prepared to do so.          Instead of allowing him this choice, the

judge berated him and stopped the hearing.               When Wilson appeared

at   the     second   hearing,    he   changed     his   mind    under    unknown

conditions and potentially without the benefit of a proper Rule

                                        8
11 colloquy.        For these reasons, we conclude that Wilson has

demonstrated a reasonable probability that, absent the district

court’s involvement, he would not have pled guilty.

       We thus turn to the last inquiry:           whether refusing to

notice this plain error would “seriously affect the fairness,

integrity or public reputation of judicial proceedings.”            United

States v. Olano, 507 U.S. 725, 736 (1993) (quoting United States

v. Atkinson, 297 U.S. 157, 160 (1936)) (internal quotation marks

omitted).

       This court has recognized that “failure to notice [] [a]

clear Rule 11 error would almost inevitably seriously affect the

fairness and integrity of judicial proceedings.”             Bradley, 455

F.3d    at   463.     This   is   unsurprising,   “given     the   critical

interests served by the prohibition [on judicial involvement in

plea     negotiations],”     including    “preserving       the    judge’s

impartiality    throughout    the   proceedings   and      preventing   the

public from gaining the misleading impression that a judge is

anything less than a neutral arbiter.”        Id. (internal quotation

marks omitted).       Indeed, we have found no cases where a Rule

11(c) violation that affected substantial rights did not also

affect the fairness of judicial proceedings.            The instant case

does not present an exception to the “general rule,” Braxton,

784 F.3d at 244.      Accordingly, we vacate the judgment and remand

the case for further proceedings.

                                     9
     As is our usual practice, we remand the case for assignment

to a different district judge.           See id. at 247; Bradley, 455

F.3d at 465.       We do not doubt that the original judge would

preside   fairly    and   impartially    over   this   case.    However,

“[r]egardless of the judge’s objectivity, it is the defendant’s

perception   of    the    judge   that   will   determine   whether   the

defendant will feel coerced to enter a plea.”          Bradley, 455 F.3d

at 465.

                            AFFIRMED IN PART AND VACATED AND REMANDED




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