                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-4937


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

OLUWASEUN SANYA,

                Defendant - Appellant.



                             No. 13-4938


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

OLUWASEUN SANYA,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of Maryland, at Greenbelt.   Peter J. Messitte, Senior District
Judge. (8:13-cr-00121-PJM-1; 8:12-cr-00379-PJM-1)


Argued:   October 30, 2014              Decided:   December 17, 2014


Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz wrote the
majority opinion, in which Judge Floyd joined. Judge Wilkinson
wrote a separate concurring opinion.


ARGUED: Byron Brandon Warnken, Jr., WARNKEN, LLC, Pikesville,
Maryland, for Appellant.     Sujit Raman, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.     ON BRIEF:
Byron L. Warnken, WARNKEN, LLC, Pikesville, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.




                               2
DIANA GRIBBON MOTZ, Circuit Judge:

     Oluwaseun Sanya contends that his guilty plea to access-

device    fraud      and      aggravated      identity            theft        was    involuntary

because the district court impermissibly participated in plea

negotiations.            We     agree      that       the    district          court       committed

reversible       error        and     so     vacate         and      remand          for     further

proceedings.



                                              I.

     In       July    2012,      Sanya      pleaded         guilty        to    one        count   of

conspiracy      to    commit        access-device           fraud    in    violation          of   18

U.S.C.    §    1029(b)(2).             As    early       as    2010,       Sanya       had     begun

operation      of    a   large-scale         credit          card    fraud        scheme.          He

recruited employees of various restaurants and other businesses

to   steal      customers’          credit    card          information          by        using   an

electronic device that he provided.                           With this stolen credit

card information, Sanya made counterfeit credit cards, which co-

conspirators then used to purchase gift cards.                                 The fraudulently

purchased, but otherwise legitimate, gift cards were then used

to buy consumer goods that the co-conspirators later returned

for cash.       In this way, Sanya used the stolen credit cards to

amass substantial amounts of money.

     After      his      July       2012    plea,       Sanya       was    released          pending

sentencing under several conditions, including that he commit no

                                                  3
further crimes.             Unfortunately, upon his release, Sanya promptly

resumed operation of his credit card fraud scheme.                                  Indeed, in

September 2012 -- a mere six weeks after his release -- security

officials       at     a     store         in     Abingdon,      Maryland,        noticed       the

suspicious behavior of Sanya’s co-conspirators and called the

local police.          Officers responded to the scene, arrested Sanya,

and   after     an     investigation,                charged    him   with    numerous       state

crimes    and     retained            him       in    state     custody.          When     federal

officials      learned           of   Sanya’s         arrest,    he   was     transferred        to

federal custody, and the state charges were dismissed.                                   On March

13, 2013, a federal grand jury indicted Sanya of access-device

fraud and other charges, including aggravated identity theft.

      Sanya’s        sentencing            for       the   initial    access-device          fraud

offense   --      to    which         he    had      pleaded     guilty      in   July     --   was

postponed while the Government and Sanya’s counsel attempted to

negotiate     a      plea    that      would         resolve    the   second      offenses      and

consolidate       all       of    Sanya’s        offenses       for   sentencing.           Sanya,

however, rejected the Government’s offer, and at the time of his

May 2013 detention hearing on the second offenses, the parties

had failed to reach any plea agreement.

      Learning         of        Sanya’s         intransigence        at     that        detention

hearing, the district judge expressed his strong preference that

Sanya enter a plea to the second set of charges and agree to

have those charges and the initial access-device fraud charge

                                                      4
consolidated for sentencing.                In so doing, the court repeatedly

opined     that     such    a     plea      would      be    beneficial            to    Sanya’s

interests.          After    hearing        the       judge’s     exhortations,            Sanya

changed course and expressed a willingness to work toward such a

result.

      Five days later, Sanya executed a plea agreement covering

the second set of charges.                The plea was entered the next month,

before the same district judge, with Sanya pleading guilty to

one   count    of    access-device          fraud      in   violation         of    18    U.S.C.

§ 1029(a)(2), as well as one count of aggravated identity theft

in violation of 18 U.S.C. § 1028A.                          These charges were then

consolidated        with      the        initial       access-device            charge          for

sentencing.       At the consolidated sentencing hearing, before the

same district judge, the court sentenced Sanya to 90 months’

imprisonment        for    the    single       initial      count       of    conspiracy         to

commit    device     fraud;       188    months       for   the     September           count    of

device     fraud,     to    be     served      concurrently            with   the       90-month

sentence; and 24 months for the September count of aggravated

identity theft, to be served consecutively, for a total of 212

months’ imprisonment.            Sanya timely noted this appeal.



                                               II.

      Sanya    contends          that,    in    violation         of    Federal         Rule     of

Criminal      Procedure      11(c)(1),          the    district         court       improperly

                                                5
participated     in    plea    discussions,        rendering    his      plea       to   the

September crimes invalid.

     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).              This prohibition on

judicial     involvement      serves    “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

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

(2006) (quoting United States v. Cannady, 283 F.3d 641, 644-45

(4th Cir. 2002)) (internal quotation marks omitted).

     Because Sanya neither objected to the judge’s involvement

in plea discussions, nor made an attempt to withdraw his guilty

plea,   we    consider   his    appellate        argument    under       the    rigorous

plain error standard.           See United States v. Davila (Davila I),

133 S.Ct. 2139, 2147 (2013); Bradley, 455 F.3d at 462.                                    To

prevail on a claim of plain error, Sanya must demonstrate not

only that the district court plainly erred, but also that this

error affected his substantial rights.                 United States v. Olano,

507 U.S. 725, 731-32 (1993).                    In the Rule 11 context, this

inquiry      means    that     Sanya     must      demonstrate       a    “reasonable

                                            6
probability that, but for the error,” he would not have pleaded

guilty.        Bradley, 455 F.3d at 463 (internal citation omitted).

Further, we will not correct any error unless we are convinced

that a refusal to do so would “seriously affect the fairness,

integrity or public reputation of judicial proceedings.”                                       Id.

In   determining         whether      these    requirements          have    been       met,    we

consider the “full record.”                   Davila I, 133 S.Ct. at 2150; see

also    Bradley,         455   F.3d    at     462    (“[w]e         consider      the     entire

record”).

       With these principles in mind, we turn to their application

in this case.



                                              III.

                                               A.

       We    first       determine     whether       the       district      court       plainly

erred.       Olano, 507 U.S. at 731-32.                        The Government properly

concedes         that    the   district     court        “likely     erred       by    involving

itself      in    plea    negotiations,”           but    briefly     contends         that    the

error    was      not    plain.       Appellee’s         Br.   at    30,    37    n.13.        The

initial concession is well taken; the latter contention is not.

       Of course, a district court does not run afoul of Rule 11

simply by mentioning the possibility of a plea.                                       Indeed, in

Bradley, we distinguished a case requiring reversal because of

judicial interference from those in which “a single brief remark

                                               7
during negotiations” or “judicial comments after completion of

the   plea    agreement”   have    been   held    not    to     constitute

impermissible   judicial   involvement    in   plea   discussions.     455

F.3d at 462 (citing cases).       The district court’s comments here,

however, were neither brief nor made after a plea deal had been

struck.

      Rather, the court repeatedly intimated that a plea to the

September charges was in Sanya’s best interests.              See J.A. 167

(“It seems to me [a plea] may stand your client a lot better.”);

J.A. 168 (“So that’s why I think a global resolution of this

makes an awful lot of sense.”); J.A. 169 (“So, again, it’s just

one of those cases where it feels like a global settlement makes

sense.”). 1   Moreover, the court strongly suggested that Sanya

would receive a more favorable sentence if he agreed to plead

guilty to the September charges and to consolidate all charges

for sentencing.    See J.A. 167-68 (“[I]f you do one [case at a

time] and I sentence and I come back and I have a trial or

whatever and he gets convicted, he stands to face another new

package; whereas . . . I can’t move it down from what it is.”);

J.A. 169 (“And then you have got a trial where he is going to

face another package and who knows where the numbers go at that

point.”); J.A. 172 (“But sometimes it’s possible, and I can’t

      1
       All citations to the J.A. refer to the joint appendix
filed by the parties in this appeal.


                                    8
say this with certainty, that he ends up with a less -- less

pleasant sentence if we take this in two pieces . . . than if we

take it in one.”); J.A. 171 (“Better to get all this wrapped in

one.”).        Finally, the court also commented on the strength of

the Government’s case.            See J.A. 167 (“Magistrate Judge Day said

. . . in       his    detention       order,        [t]he    government’s     case    looks

pretty strong in this second case.”).                            These repeated remarks

clearly constitute judicial participation in plea discussions,

and the district court erred in engaging in them.

     Just as clearly, this error was plain.                          Rule 11(c) is not

new, and the doctrine surrounding its interpretation is well-

settled.       The Rules Committee adopted -- and the Supreme Court

approved -- what is now Rule 11(c) in substantially its present

form many years prior to the hearing at issue in this case.                                See

Davila    I,    133     S.Ct.    at     2146;       Fed.    R.   Crim.   P.   11   advisory

committee’s          note   on   1974    amendment.              Furthermore,      like    our

sister circuits, we have consistently warned that a district

court errs in urging defendants to accept offers to plead.                                See,

e.g., Bradley, 455 F.3d at 462; United States v. Baker, 489 F.3d

366, 373 (D.C. Cir. 2007); United States v. Rodriguez, 197 F.3d

156, 158-59 (5th Cir. 1999); United States v. Kraus, 137 F.3d

447, 452 (7th Cir. 1998).                Thus, we can only conclude that the




                                                9
court’s   discussion   of    and   advocacy   for   a   plea    and   “global

resolution” constituted plain error. 2

                                    B.

     We must next determine whether the error affected Sanya’s

“substantial rights.”       Olano, 507 U.S. at 731-32.         In   doing so,

we simply ask whether there is “a reasonable probability that,

but for the error, he would not have entered the plea.”                United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).                Our close

examination of the full record leads us to conclude that Sanya

has demonstrated such a “reasonable probability.”

                                    i.

     At the beginning of the hearing, defense counsel made clear

that, despite his recommendation that Sanya plead and agree to a

global resolution, Sanya had “declined the [Government’s plea]



     2
       The Government misses the mark in suggesting that Sanya
invited this error. “The invited error doctrine recognizes that
a court cannot be asked by counsel to take a step in a case and
later be convicted of error, because it has complied with such
request.” United States v. Jackson, 124 F.3d 607, 617 (4th Cir.
1997) (internal citation and quotation marks omitted).       The
Government argues that Sanya’s counsel “consciously turn[ed] the
subject of the hearing” toward the potential plea in hopes that
the court could convince Sanya to take the Government’s offer.
Appellant’s Br. 35-37. Although Sanya’s counsel alluded to the
prospect of a “global resolution,” and may well have appreciated
the district court’s enthusiasm for a plea and “global
settlement,” the record does not offer any support for the view
that defense counsel asked or suggested that the court
participate in plea negotiations.    Thus, the court’s error in
doing so was not invited.


                                    10
offer.”     J.A. 167. 3    The district court then responded with a

series of exhortations as to why it would be advantageous for

Sanya to plead.        After commenting that although “I obviously

can’t make you do this” -- i.e., plead guilty in the second case

-- the court opined that it might “stand [Sanya] a lot better”

to do so.    J.A. 167.

      Over the course of this hearing, after commenting on the

strength    of   the   Government’s     case     against   Sanya,   the   court

repeatedly expressed its view that a plea to the second set of

charges and a “global resolution” would be to Sanya’s advantage,

intimating that he would receive a more lenient sentence if he

did   so.    See   J.A.   167,   168,   169. 4      And    the   court   clearly


      3
       From the outset, Sanya had demonstrated a desire to go to
trial on the second set of charges.    Thus, within weeks of his
indictment on those charges, he had filed several pretrial
motions, including a motion in limine.     J.A. 11 ¶ 5, 7.    The
docket does indicate that ten days after Sanya filed this
motion, a “guilty plea/rearraignment” was scheduled.          The
Government, without citation to anything other than this docket
entry, asserts that Sanya “accepted a plea offer.”     Appellee’s
Br. 10. But this early plea hearing apparently never took place
and the record contains no early plea.    Sanya contends that he
had “considered taking a plea” but “up until the time of the
judicial interjection, [he] had affirmatively decided not to
accept the plea bargain.”         Reply Br. 1-2.      Even this
consideration seems brief, for less than a week after the
scheduled “guilty/plea rearraignment” hearing, the parties were
again preparing for trial, as evidenced by the filing of
numerous additional pretrial motions. See J.A. 11-12 ¶¶ 9-15.
      4
       Shortly after one such suggestion, the district court
noted “I can’t get involved in your negotiations.” J.A. 168.
The Government regards this disclaimer as significant.   But
(Continued)
                                      11
highlighted the downside of not entering a plea, warning Sanya

“who knows where the numbers will go” if he insisted on a trial.

J.A. 169.

     The      district      court’s    repeated      comments          about      the

advisability of a global plea agreement appear to have had an

almost immediate effect on Sanya.            Near the end of the hearing,

Sanya conferred with his lawyer and conveyed an interest “in a

global   resolution.”        J.A.   171.     This   sudden      and    significant

shift    in   attitude    from   the   beginning     of   the    hearing,        when

Sanya’s lawyer indicated that Sanya “had declined [an] offer,”

J.A. 167, strongly suggests that his mid-hearing change of heart

was the product of the district court’s urging.

     Even     after      Sanya   expressed    a     tentative         interest     in

negotiating a plea, the district court continued to send signals

that Sanya would be well-served by reaching an agreement with

the Government.       Indeed, the court again suggested that Sanya

would receive a more favorable sentence by pleading guilty and

receiving     a   consolidated   sentence,    explaining        “sometimes       it’s

possible, and I can’t say with certainty, that he ends up with a

less -- less pleasant sentence if we take this in two pieces”




given that the court had already become involved in the
negotiations, and, just moments after this disclaimer, once
again extolled the merits of a “global” resolution, we cannot
agree.


                                       12
rather     “than     if    we    take     it       in    one.”       J.A.     172.    Further

emphasizing the point, the court cautioned that “I think you

need to understand that, Mr. Sanya.                          That’s the reality of the

way the system works.”                J.A. 172.

      Sanya listened.                 Within just five days of this hearing,

Sanya had executed a plea agreement.                             See J.A. 178-79.           And

within a month, the plea was entered and the two cases were set

for a consolidated sentencing.                          Such close temporal proximity

weighs     heavily    in       favor    of     finding       that    Sanya’s     decision   to

plead guilty was the result of the district court’s involvement

in   the    plea   negotiations.                While        other    factors    could     have

intervened     during          that    short       period     and     led   Sanya    to   plead

guilty, it is, at the very least, “reasonably probable” that the

district court’s comments during the May 10 hearing were the

tipping point.

                                               ii.

      In    arguing       to    the    contrary         in   its     appellate    brief,    the

Government     simply          ignores       the     facts     set    forth     above.      See

Appellant’s Br. 37-38.                  Instead, the Government contends that

Sanya has failed to demonstrate the court’s exhortations had any

effect on his substantial rights because he did not object to

the court’s involvement either at the proper Rule 11 colloquy,

or at sentencing, or by otherwise moving to withdraw his plea

before this appeal.              Id. at 38.              Sanya’s failure to object to

                                                13
the       error     on   any    of     these   occasions           of       course       provides   the

reason why he must meet the rigorous plain error standard.                                          But

this failure, in and of itself, does not provide a basis for

concluding            that     Sanya    failed        to    demonstrate              a    “reasonable

probability” that his substantial rights were affected.

          In a series of Rule 28(j) letters, 5 the Government switches

gears         and     argues    that    cases    from        other          circuits,       reviewing

entirely different records, “require the result” it seeks here.

See United States v. Thompson, --- F.3d ---, 2014 WL 5334447

(8th Cir. Oct. 21, 2014); United States v. Davila (Davila II),

749 F.3d 982 (11th Cir. 2014); United States v. Castro, 736 F.3d

1308 (11th Cir. 2013).                 The Government’s heavy reliance on cases

from          other      courts,       assessing           other        records,           stands    in

considerable             tension       with    the     Supreme              Court’s       recent    and

explicit teaching in Davila I as to the proper appellate review

of    a       district    court’s       participation         in        a    guilty       plea.     The

Davila I Court made crystal clear its “essential point . . .

that particular facts and circumstances matter.”                                         133 S.Ct. at

2149.          Thus, in considering a district court’s participation in


          5
        In a three-week period, the Government filed five Rule
28(j) letters in this case -- perhaps a record.        The Rule
requires that the body of any Rule 28(j) letter “not exceed 350
words.”   Fed. R. App. P. 28(j).  Four of the Government’s five
letters exceeded this word limit; one exceeded a thousand words.
We trust that in the future the Government will comply with the
letter and spirit of Rule 28(j).


                                                 14
a plea negotiation, an appellate court must assess the “facts

and circumstances” in the case before it.

       It is the particular facts and circumstances in this case

that    lead      us    to         conclude    that      Sanya      has     established      a

“reasonable probability” that, absent the error, he would not

have entered the plea.                These facts and circumstances differ in

important      respects        from      those      in    the     cases     on    which    the

Government so heavily relies.                  First, in two of the Government’s

cases, the appellate courts appear to have applied an incorrect

legal standard in assessing whether the defendant’s substantial

rights had been violated.                     To be sure, in both, the courts

acknowledged       the        correct     “reasonable           probability”       standard.

Castro, 736 F.3d at 1313; Davila II, 749 F.3d at 993.                                But in

both cases, the courts went on to explain that a defendant must

do more than demonstrate a “reasonable probability” that, absent

the error, he would not have pleaded guilty.                              Thus, in Castro,

the court opined at some length that a defendant “must prove

that but for the [district court’s] error, he would not have

entered the plea.”             Castro, 736 F.3d at 1314 (emphasis added).

The court found Castro had not established a violation of his

substantial rights because it was “not convinced that [he] would

have rejected          the    plea     agreement      had     the   district      court    not

advised     him    of        the     consequences        of     reneging     on   his     plea

agreement.”       Id. (emphasis added); see also id. at 1309, 1315.

                                               15
In Davila II, the court again followed this flawed approach.

See Davila II, 749 F.3d at 997 (noting that the defendant “must

prove that the error made a difference in his decision,” and

“must prove more than that the record is consistent with his

argument;   he    must      show    that    the    error        actually     did    make    a

difference.” (emphasis added) (internal quotation omitted)).

      The Government repeats this incorrect standard in one of

its Rule    28(j)     letters,       arguing      that    “Sanya,       on   plain    error

review, cannot surmount the ‘daunting obstacle’ of proving that,

but for the Rule 11(c)(1) error, he would have gone to trial.”

Letter of October 30, 2014 (emphasis added) (quoting Castro, 736

F.3d at 1314); see also id. (reasoning that “if the effect of

the error on the result in the district court is uncertain or

indeterminate,”       the    defendant      “has     failed       to    prove   that      the

result would have been different . . . or his substantial rights

have been affected” (emphasis added)).

      The Government (and Castro and Davila II) are simply wrong

in   requiring    a   defendant        to    prove       that    “but    for    the    Rule

11(c)(1) error, he would have gone to trial.”                             Id. (emphasis

added).     The     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.               Dominguez, 542 U.S. at 83.                    And the

Court has painstakingly explained what it means by “reasonable

                                            16
probability” -- a “defendant must thus satisfy the judgment of

the reviewing court, informed by the entire record, that the

probability of a different result is ‘sufficient to undermine

confidence in the outcome’ of the proceeding.”                         Id. (citations

omitted).       Hence, contrary to the Government’s contention (and

the apparent practice in the two cases on which it most heavily

relies), Sanya need not show that, “but for” the court’s error,

he would have gone to trial, or that this result was “certain.”

He    need    only    demonstrate    a    “reasonable      probability”        that     he

would not have pleaded guilty absent the court’s comments.

       Moreover, all three of the cases on which the Government

relies involve very different facts from those in the case at

hand.        Perhaps most importantly, the defendants in all of the

Government’s         cases   had   agreed    to   terms    in   one    or     more    plea

agreements      prior    to   the   challenged      comments      by    the    district

court.       In Thompson, “[t]he day before the trial was to begin,”

the    defendant       “notified    the     district      court   he     would       plead

guilty” and the “proposed plea agreement was provided to the

district court for review.”              2014 WL 5334447 at *1.             Similarly,

the defendants in Davila II and Castro both signed written plea

agreements before later reneging and expressing a desire not to

plead.       Davila II, 749 F.3d at 995; Castro, 736 F.3d at 1310.

Thus, when the defendants in those three cases appeared before



                                            17
the   district       court,   the    court    knew      of     and   reacted    to    their

stated earlier intent to plead guilty.

       In stark contrast, the record in this case indisputably

bears out Sanya’s contention that when he appeared before the

district court, the court had no reason to believe he intended

to    plead    guilty.        Indeed,   Sanya’s         counsel      explained       at    the

outset of the hearing that although he had advised Sanya to

agree to a plea and global resolution, Sanya had “declined the

offer.”       J.A.    166-67.        Notwithstanding           its   suggestion       of    an

early    aborted      plea,    see   supra       n.3,    the    Government      does       not

contend       to   the   contrary.            This      critical       fact     tellingly

distinguishes Sanya’s case from those on which the Government

relies, and significantly undercuts the Government’s contention

that Sanya would have pleaded guilty even without the district

court’s urging.

       Furthermore, the plea agreement Sanya ultimately did sign

afforded him little in the way of benefits or concessions from

the     Government.        Compare      Castro,         736    F.3d    at     1314    (plea

permitted      defendant      to    avoid    “prosecution        and   punishment          for

seven offenses,” including one “for which he faced mandatory

sentence of 25 years . . . that had to run consecutively”).

This fact further suggests that it was the district court’s pre-

plea intimation of a “less pleasant sentence if we take this in



                                            18
two pieces,” J.A. 172, rather than the plea deal itself, that

changed Sanya’s mind and led him to plead guilty. 6

     Additionally, unlike the defendant in Davila II, Sanya was

urged to accept a plea by the same judge who sentenced him.

And, in contrast to Castro, that judge repeatedly emphasized

that he would be sentencing Sanya when urging him to plead,

increasing the risk that Sanya felt coerced to do as the judge

advised.   Further, unlike either Thompson or Davila II, here the

district court did indicate that pleading guilty would be in the

defendant’s best interests, even suggesting that the strength of

the Government’s case counseled in favor of striking a deal.

See J.A. 167-68.

     For all of these reasons, after close examination of the

full record in this case, we can only conclude that Sanya has


     6
       The Government points to Sanya’s undocumented, apparently
aborted, early agreement to plea, his assertion of diminished
capacity to delay trial, and his procurement of new counsel for
sentencing as “gamesmanship,” relied on by the Castro court as
proof that Rule 11 error did not affect substantial rights. See
Castro, 736 F.3d at 1314-15. We find the argument unpersuasive
for   two  reasons.     First,  the   Castro  court   relied  on
“gamesmanship” to buttress an incorrect legal standard for
asserting an effect on substantial rights, i.e., requiring
Castro to prove that “but for” the judicial comments he would
not have entered a plea. Second, the Castro court reasoned that
“gamesmanship . . . suggest[ed] that [the defendant] decided to
plead guilty because he did not want to forego a favorable
agreement.” Id. at 1314. In the case at hand, Sanya’s conduct
does not suggest he pleaded guilty to avoid “forego[ing] a
favorable [plea] agreement” since Sanya did not avoid foregoing
a favorable plea agreement.


                                19
established a reasonable probability that, absent the district

judge’s involvement, he would not have pleaded guilty to the

second set of charges.

                                         C.

       We thus turn to the final inquiry -- whether refusing to

notice this plain error, which Sanya has shown to have had a

reasonable    probability     of    affecting      his    substantial      rights,

would    “seriously      affect    the    fairness,      integrity    or    public

reputation of judicial proceedings.”                Olano, 507 U.S. at 736

(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936))

(quotation marks omitted).         We believe it would.

       Although the district court’s comments about the advantages

of a plea to the second set of charges and consolidation of the

two cases occurred in a single, short hearing, those comments

were    repeated   and   direct.         Indeed,   the   court’s     exhortations

saturated    the   hearing.        Immediately      upon    receipt    of   those

exhortations, Sanya withdrew his insistence on going to trial

and agreed to consider both a plea to the second charges and the

“global resolution” that the judge advised; five days later he

signed a plea agreement that achieved that precise result.

       We have consistently concluded:

       [G]iven   the  critical   interests   served  by  the
       prohibition   [on   judicial   involvement   in  plea
       negotiations] -- preserving “the judge’s impartiality
       throughout the proceedings and preventing the public
       from gaining the “misleading impression” that a judge

                                         20
       is anything less than a “neutral arbiter” . . . --
       failure to notice this sort of clear Rule 11 error
       would almost inevitably seriously affect the fairness
       and integrity of judicial proceedings.

Bradley, 455 F.3d at 463 (quoting Cannady, 283 F.3d at 644-45).

The    district   court   put   Sanya    “in   a    position   that   would   be

reasonably perceived by a defendant as inconsistent with the

court’s role as a neutral arbiter of justice.”                 Baker, 489 F.3d

at 375.

       As our colleagues on the D.C. Circuit recently explained,

“[w]hen a court appears to make a tacit offer of leniency in

exchange for a guilty plea, even if that offer is accompanied by

caveats,    confidence    in    the   court    is   undermined.”      Id.     We

therefore conclude, after close review of the entire record,

that   refusal    to   notice   the   plain    error    in   this   case    would

“seriously affect the fairness, integrity or public reputation

of judicial proceedings.”        Olano, 507 U.S. at 736.



                                      IV.

       We note that our review of the full record also leads us to

conclude that the experienced district judge acted only with the

best of intentions.       The judge attempted to resolve Sanya’s case

not just expeditiously, but also fairly.               We perceive no desire

to coerce an involuntary plea.




                                        21
      Because,     notwithstanding             the      district      court’s       good

intentions,      our    full   record          review     reveals     a    reasonable

probability      that   the    court’s         plain    error   affected        Sanya’s

substantial rights, and that failure to recognize this error

would seriously undermine confidence in the fairness of judicial

proceedings, we vacate the sentence imposed on Sanya and remand

for   further    proceedings.        On   remand,       Sanya   can    withdraw      his

guilty plea to the September 2012 charges (the subject of PJM

13-0121). 7     Of course, Sanya’s agreement of July 2012, to plead

guilty to the first charge (PJM 12-0379) still stands, because

it was not affected by anything said at the May 2013 hearing.

      As is usual, we also remand the case for assignment to a

different district judge.            See Baker, 489 F.3d at 376; Bradley,

455 F.3d at 465.        We have absolutely no doubt that the original

district judge could continue to preside fairly over this case.

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

defendant’s perception of the judge that will determine whether




      7
       Given our resolution of this issue, we need not reach
Sanya’s other appellate contentions; all are now moot.     We do
appreciate the Government’s statement at oral argument that it
will undertake to examine its standard plea agreement (which was
used in this case) in order to eliminate possible ambiguous or
contradictory provisions.


                                          22
the defendant will feel coerced to enter a plea.”   Bradley, 455

F.3d at 465 (internal quotation marks and citations omitted).



                                             VACATED AND REMANDED




                               23
WILKINSON, Circuit Judge, concurring:

       I am pleased to concur in Judge Motz’s fine opinion in this

case.    It    underscores      the    wisdom     of    Rule    11’s   injunction    to

district courts to “not participate in [plea] discussions.” Fed.

R. Crim. P. 11(c)(1). Like my colleagues, I find it difficult to

criticize the district court. See Maj. Op. Sect. IV. That court

rightly recognized that defendants often benefit substantially

from    taking     a     plea.        However,     it     failed       to    appreciate

sufficiently that where, out of a belief in one’s innocence, a

desire to put the state to its proof, or a desire simply to roll

the dice, defendants may, if they wish, risk deeply unfavorable

outcomes by exercising a judicially unimpeded right to proceed

to trial.

                                           I.

       I would emphasize, however, the Supreme Court’s emphatic

holding that Rule 11(c) violations are not structural errors,

but are subject to harmless and plain error review. See Fed. R.

Crim. P. 11(h), 52(a)-(b). In United States v. Davila, 133 S.

Ct.    2139    (2013),   the     defendant       contended      that   courts    should

automatically      vacate      convictions       arising       from   plea   agreements

where the court engaged in “conduct banned by Rule 11(c)(1)”

because “[w]hen a judge conveys his belief that pleading guilty

would be to a defendant’s advantage . . . [he] becomes, in

effect,    a    second   prosecutor,       depriving       the    defendant     of   the

                                           24
impartial arbiter to which he is entitled.” Id. at 2148. Rule

11(c) violations, Davila argued, should be “no mere procedural

technicality.” Id.

      Yet a holding of structural error would have vitiated the

Supreme Court’s long support for “the finality of guilty pleas.”

See id. at 2147 (quoting United States v. Vonn, 542 U.S. 55, 79

(2002))    (internal     quotation     marks   omitted).   The    Court   thus

firmly rejected the contention that Rule 11 violations should be

considered structural error, asserting that Rule 11 does not

“demand[] automatic vacatur of the plea without regard to case-

specific circumstances.” Id. at 2148. Only “a very limited class

of errors” should be considered structural errors such that they

“trigger automatic reversal.” Id. at 2149 (quoting United States

v.   Marcus,     560   U.S.    258,   263   (2010))   (internal    quotations

omitted). Rule 11, the Supreme Court stressed, “does not belong

in that highly exceptional category.” Id.

      The majority notes that the Supreme Court did not adopt a

difficult “but for” standard for determining whether the Rule

11(c) violation affected a defendant’s rights, in this case the

desire to proceed to trial. Maj. Op. at 16-17. It also bears

noting    that   the   court    did   adopt    a   “reasonable    probability”

standard, not a “reasonable possibility” test, which would have

proven much easier for defendants to satisfy, but would also

have undermined plea finality.

                                       25
                                              II.

        I concur in the majority opinion because it rightly notes

that the nature of the district court’s involvement here lent

itself to ready interpretation of a coerced plea agreement. The

court handed out an assertedly more favorable sentence after a

plea of guilty and threatened a “less pleasant sentence” if the

defendant exercised his bedrock right to proceed to trial. J.A.

172.    In   addition        the    “close     temporal       proximity”    between    the

court’s comments and the reversal of field on the defendant’s

part     resulting      in     a    plea      of    guilty     further     augments     the

appearance of unwarranted judicial interference.

       Crucial     to    my   concurrence          is   the   majority’s     recognition

that    other     scenarios        may   be   quite     different    from    this     case.

Specifically judicial involvement may be more cursory than here.

Or it may be that the plea agreement, unlike here, was entered

prior to the trial court’s alleged involvement. Or it may be

again     that    a     longer      lapse     of    time      attenuates    any     causal

connection between a trial court’s comments and a defendant’s

decision     to    plead      guilty.       Further,     a    Rule   11    plea   hearing

replete with safeguards to ensure the voluntary and intelligent

nature of the plea may be a factor reinforcing the application

of Rule 11’s harmless error standard. See Davila, 133 S. Ct. at

2149-50. Finally, the prospect of defendants blowing hot and



                                              26
cold as to their intentions to plead or go to trial would verge

on sandbagging and not commend a challenge on appeal.

      The   factual    scenarios   are        many   and   varied,   and   as   the

majority emphasizes, the case rises or falls on the “facts and

circumstances” of the particular case. Maj. Op. at 15 (quoting

Davila, 133 S. Ct. at 2149). This case is a close one, because

the   record   hints   at   the   kind    of    defendant    gamesmanship       that

often masquerades as change of heart both on whether to proceed

to trial or, in other cases, whether to exercise one’s Faretta

right to proceed pro se. See Faretta v. California, 422 U.S. 806

(1975). The majority has carefully explained why on the facts

here, the defendant should be accorded the benefit of the doubt.

The totality of the circumstances persuades me as well that the

heavy arsenal of judicial authority was deployed to dissuade a

defendant from exercising his fundamental right to a fair trial.




                                         27
