     Case: 15-40418      Document: 00513506341         Page: 1    Date Filed: 05/16/2016




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

                                    No. 15-40418
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            May 16, 2016
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

ALICIA V. LARRIER, also known as Alicia Victoria Larrier-Amaya, also
known as Alicia Victoria Espaillat,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:14-CR-336


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       A jury convicted Alicia V. Larrier of illegal reentry following deportation
in violation of 8 U.S.C. § 1326. The district court sentenced Larrier to ninety-
seven months of imprisonment. On appeal, Larrier argues that her conviction
and sentence should be reversed because the district court impermissibly




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 15-40418      Document: 00513506341        Page: 2     Date Filed: 05/16/2016


                                     No. 15-40418

participated in plea negotiations in violation of Federal Rule of Criminal
Procedure 11(c)(1). 1
       Because Larrier failed to raise an objection to the district court’s alleged
improper participation in plea negotiations, this court’s review is for plain
error. See United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir.
2009). Under plain error review, Larrier has the burden of showing a forfeited
error that is clear or obvious and that affects her substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If she does so, this court
has the discretion to correct the error if it seriously affects the integrity,
fairness, or public reputation of the judicial proceedings. See id.
       Larrier claims that during a pretrial conference, the district judge
violated Rule 11(c)(1) by implying that Larrier was making a bad decision by
not pleading guilty, that she had no defense, and that she was running the risk
of a higher sentence by going to trial. This court has described Rule 11(c)(1) as
a “bright line rule” that absolutely prohibits “all forms of judicial participation
in or interference with the plea negotiation process.” United States v. Pena,
720 F.3d 561, 570 (5th Cir. 2013) (citations omitted).                 This bright line
prohibition serves to diminish the likelihood of a court coercing a guilty plea,
to avoid impairing the court’s impartiality by giving the court a stake in the
plea bargaining process, and to avoid creating the impression that the court is
an advocate for a plea. See id. at 570–71; United States v. Rodriguez, 197 F.3d
156, 158–59 (5th Cir. 1999).
       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


       1 Rule 11(c)(1) reads: “An 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. . . .”


                                            2
      Case: 15-40418   Document: 00513506341     Page: 3   Date Filed: 05/16/2016


                                  No. 15-40418

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. Cf.
Rodriguez, 197 F.3d at 159 (district court’s coercive statements exerted
pressure on a reluctant defendant to plead guilty and violated Rule 11).
Beyond noting that Larrier would “giv[e] up three-levels for acceptance of
responsibility” if she was convicted, the district court did not promise a reduced
sentence or suggest that a particular sentence was a possible outcome if
Larrier pleaded guilty. See United States v. Daigle, 63 F.3d 346, 349 (5th Cir.
1995) (district court’s indication of sentence constitutes participation in plea
negotiations).   Nor did the court inject itself into any discussion of the
particular terms of conditions of any plea agreement. Cf. United States v.
Crowell, 60 F.3d 199, 204 (5th Cir. 1995) (district court’s comment that it would
require a sentence of a certain level of severity before it would accept a plea
violated Rule 11).
       Even if the district court’s statements constituted a clear and obvious
Rule 11 error, Larrier cannot show an adverse effect on her substantial rights.
“To affect the defendant’s substantial rights, the defendant must demonstrate
that the error affected the outcome of the district court proceedings.” Pena,
720 F.3d at 570 (quoting United States v. Broussard, 669 F.3d 537, 553 (5th
Cir. 2012)). The Government offered Larrier a conditional plea agreement,
which she rejected, on three occasions. Larrier then exercised her right to trial
and was convicted by a jury. She has not presented any evidence that the
district court’s impartiality at sentencing was impaired by the discussions. See
id.   The only evidence Larrier presented suggesting impartiality was the
district court’s acknowledgment, when discussing a two-level enhancement for
obstruction of justice, that Larrier did not always “maintain that she was not



                                        3
    Case: 15-40418     Document: 00513506341     Page: 4   Date Filed: 05/16/2016


                                  No. 15-40418

guilty of illegal reentry” because she           had previously demanded a
misdemeanor.     Although Larrier contends that the district court had this
information only because it participated in plea negotiations, the record shows
that Larrier volunteered the details of her plea negotiations during the
hearing. Because the detailed sentencing hearing transcript does not show
that the district court lacked impartiality, Larrier cannot show that the district
court’s discussions affected her substantial rights. See United States v. Diaz,
138 F.3d 1359, 1364 (11th Cir. 1998), abrogation on other grounds recognized
by United States v. Castro, 736 F.3d 1308, 1313 (11th Cir. 2013).
      Because Larrier has not shown that the district court plainly erred, the
district court’s judgment is AFFIRMED.




                                        4
