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

                                      No. 13-51101
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                              January 6, 2017

UNITED STATES OF AMERICA,                                                      Lyle W. Cayce
                                                                                    Clerk
              Plaintiff - Appellee

v.

ALARCON WIGGINS, also known as Alarcon Allen Wiggins, also known as
Alarcon Tha Don,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2420-1


Before KING, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Alarcon Wiggins pleaded guilty to federal charges
and was sentenced to 212 months of imprisonment. On appeal, Wiggins argues
that the district court impermissibly participated in plea negotiations in
violation of Federal Rule of Criminal Procedure 11(c)(1), and therefore, his
guilty plea should be vacated. Wiggins also argues that the district court
abused its discretion when it denied his motion to withdraw his guilty plea.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-51101
For the following reasons, we AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Defendant–Appellant Alarcon Wiggins was charged with, inter alia,
conspiracy to obtain the labor and services of a person by force, in violation of
18 U.S.C. § 1594(b), and the transportation of individuals in interstate
commerce with the intent that such individuals engage in prostitution, in
violation of 18 U.S.C. § 2421. Trial was scheduled to begin on August 12, 2013.
In May 2013, Wiggins rejected a plea offer made by the Government.
      On June 27, 2013, the district court held a status conference to discuss
certain pretrial matters.    During the status conference, Wiggins’s counsel
advised the district court that Wiggins had rejected the Government’s plea
offer. Wiggins’s counsel stated that he wanted to inform the district court on
the record that the plea offer was rejected and “also to inquire if there are any
potential deadlines in this case.” After a brief discussion about other issues,
the district court turned back to the topic of the rejected plea offer. The district
court ordered Wiggins’s counsel to question Wiggins on the record about the
plea agreement because “the record needs to reflect that [Wiggins] understood
what you said.” During the ensuing questioning, the prosecutor interrupted
because she wanted the record also to reflect the potential sentences Wiggins
would face should he be convicted at trial, including the fact that at least three
of the counts carried mandatory minimum sentences of 15 years.                 The
prosecutor then proceeded to list the counts and their corresponding sentences,
as well as describing which counts were “stacking counts.”
      It was at this point that the district court asked Wiggins whether he
understood what “stacking counts” were.           After Wiggins replied in the
negative, the district court engaged in a lengthy discussion with Wiggins about
the potential sentences that he faced. During this discussion, the district court
twice explained that Wiggins could only be sentenced to a maximum of 20 years
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                                  No. 13-51101
under the plea offer, but if he proceeded to trial and were to be convicted, he
could be sentenced to life in prison. The district court also told Wiggins three
times that it was “important” for him to understand the plea offer and how
sentencing works. The district court even created a hypothetical “scenario” to
show Wiggins how consecutive sentencing would work if he were to be
convicted after trial on only two of the many counts that he was facing. The
district court also noted that the decision to plead guilty was Wiggins’s decision
to make and that the district court was ready to try the case if he chose not to
plead guilty.
      On August 8, 2013, Wiggins pleaded guilty to violations of 18 U.S.C.
§ 1594(b) and 18 U.S.C. § 2421 pursuant to a plea agreement in which the
Government agreed to dismiss the other counts.             During rearraignment,
Wiggins swore that he understood the charges against him. Wiggins also
testified that his plea was voluntary; he was not forced, threatened, or coerced
into pleading guilty; and he was not induced to plead guilty by any promises
or offers other than the plea agreement before the court. Finally, Wiggins
testified that he agreed with the Government’s oral summary of the written
factual basis as well as the actual written factual basis.
      On August 23, 2013, Wiggins mailed a letter to the district court stating
that he wanted to withdraw his guilty plea. In this letter, which was received
by the district court on August 28, Wiggins stated that his counsel had
pressured him to plead guilty by threatening him with life imprisonment,
potential charges against him in another jurisdiction, and potential charges
against his mother. Wiggins’s counsel subsequently moved to withdraw, which
was granted and new counsel was appointed for Wiggins. On September 24,
2013, Wiggins’s new counsel filed a motion to withdraw the guilty plea. In the
motion, Wiggins claimed that his guilty plea was induced by an informal
agreement with the Government to release Shelby Smith and Roxane Mitchell,
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                                  No. 13-51101
who were codefendants and the mothers of his children. Smith and Mitchell
had both previously pleaded guilty pursuant to plea agreements and were
released from custody on August 20, 2013.
      On October 3, 2013, the district court held a hearing on Wiggins’s motion
to withdraw his guilty plea. During the hearing, Wiggins testified that he was
innocent but nevertheless pleaded guilty based on a combination of the reasons
given in his initial letter to the court and his later motion to withdraw. On
October 30, 2013, in a written order, the district court weighed the seven
factors articulated in United States v. Carr, 740 F.2d 339 (5th Cir. 1984), and
concluded that, based on a totality of the circumstances, Wiggins’s motion to
withdraw his guilty plea should be denied.
      The district court sentenced Wiggins to 212 months of imprisonment and
10 years of supervised release. Wiggins timely appealed.
     II. THE DISTRICT COURT’S COMMENTS AT THE STATUS
                                CONFERENCE
      Wiggins contends that the district court improperly participated in plea
negotiations in violation of Federal Rule of Criminal Procedure 11(c)(1).
Because Wiggins “failed to raise an objection to the district court’s alleged
improper participation in plea negotiations, [our] review is for plain error.”
United States v. Larrier, 648 F. App’x 441, 442 (5th Cir. 2016). Under plain
error review, Wiggins must show that the district court’s comments constituted
a clear or obvious error that affected his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). If Wiggins makes this showing, we
have “the discretion to remedy the error—discretion which ought to be
exercised only if the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” Id. (alteration in original) (quoting United
States v. Olano, 507 U.S. 725, 736 (1993)).
      Rule 11(c)(1) prohibits a district court from participating in plea
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negotiations. 1 United States v. Pena, 720 F.3d 561, 570 (5th Cir. 2013). We
have described Rule 11(c)(1)’s prohibition as being a “bright line rule” and
creating “an absolute prohibition on all forms of judicial participation in or
interference with the plea negotiation process.” Id. (first quoting United States
v. Rodriguez, 197 F.3d 156, 158 (5th Cir. 1999); then quoting United States v.
Adams, 634 F.2d 830, 835 (5th Cir. Unit A 1981)); see also United States v.
Hemphill, 748 F.3d 666, 672 (5th Cir. 2014) (describing Rule 11(c)(1) as a
“blanket prohibition” that “admits of no exceptions”). This bright line rule
serves three important purposes: (1) “it diminishes the possibility of judicial
coercion of a guilty plea, regardless whether the coercion would actually result
in an involuntary guilty plea;” (2) a judge’s participation in plea negotiations
“is apt to diminish the judge’s impartiality” because “the judge may feel
personally involved, and thus, resent the defendant’s rejection of his advice;”
and (3) a judge’s participation “creates a misleading impression of [the judge’s]
role in the proceedings” because the judge appears less like a “neutral arbiter”
and “more like an advocate for the agreement.” United States v. Daigle, 63
F.3d 346, 348 (5th Cir. 1995). “In light of these considerations, we have not
hesitated to find a Rule 11 error even when the court’s participation is minor
and unintentional.” United States v. Ayika, 554 F. App’x 302, 305 (5th Cir.
2014) (per curiam).
      Here, Wiggins argues that the district court violated Rule 11(c)(1) during
the June 27 status conference by engaging in an extended discussion with
Wiggins about the plea offer, which included the district court’s contrasting the
lower sentencing under the plea offer with the potentially higher sentencing
that he could receive if convicted at trial, advising him repeatedly that it was


      1  “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.” Fed. R. Crim. P. 11(c)(1) (emphasis added).
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                                 No. 13-51101
“important” that he understand the plea offer, and creating a “scenario” of his
potential sentencing post-trial. We do not doubt that the district court was
motivated by a genuine desire to help Wiggins understand the federal
sentencing framework. However, the best practice under these circumstances
would have been to ask Wiggins to confer with his counsel to ensure that he
understood the plea offer and the potential sentencing ramifications should he
be convicted at trial, and in fact, the Government agreed during oral argument
that this would have been the better practice. By doing so, the district court
would have avoided any risk of violating Rule 11(c)(1) and appearing implicitly
to suggest that the district court favored a plea agreement. Cf. Hemphill, 748
F.3d at 675 (“Here, however, defense counsel had already indicated on the
record that he had fully discussed the plea offer with [the defendant]. The
district court’s comments then went much farther than documenting the plea
offer or informing [the defendant] of its terms, as contemplated in Frye.”).
      However, we need not decide whether the district court’s comments here
amounted to a clear or obvious violation of Rule 11(c)(1). Even assuming,
arguendo, that the district court erred, Wiggins has failed to demonstrate that
the error affected his substantial rights. To satisfy this prong of plain error
review, the error must have affected the outcome of the proceedings in the
district court. Pena, 720 F.3d at 573. In the context of a defendant attempting
to vacate his guilty plea because of a Rule 11(c)(1) violation, the defendant
“must show a reasonable probability that, but for the error, he would not have
entered the plea.” Id. (quoting United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004)).
      Wiggins has failed to establish a reasonable probability that he would
not have pleaded guilty but for the district court’s allegedly improper
comments. First, Wiggins did not plead guilty until nearly six weeks after the
district court’s comments during the June 27 status conference. The six weeks
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                                      No. 13-51101
time gap here is far greater than the amount of time that elapsed in any of our
prior cases in which we have found that a temporal proximity between a
district court’s improper participation and a defendant’s guilty plea supported
the finding that the defendant would not have pleaded guilty but for the
district court’s improper participation. See id. at 574 (“Just five days later,
[the defendant] pled guilty—a temporal proximity that supports a finding of
prejudice.”); Ayika, 554 F. App’x at 307–08 (finding that the defendant had
sufficiently demonstrated that the error affected his substantial rights, in part,
because he agreed to plead guilty “[t]he day immediately after the district
court’s statements”). Second, Wiggins has failed to point to anything else in
the record supporting his argument that he would not have pleaded guilty but
for the district court’s comments. See United States v. Holmes, 614 F. App’x
750, 751 (5th Cir. 2015) (per curiam) (“Although [the defendant] claims that he
pleaded guilty because of the trial court’s comments, he cites to nothing in the
record that supports his claim. The record reflects that he waited three months
after the court’s comments to enter his guilty plea, and he testified at his
rearraignment that no one had threatened, coerced, or intimidated him to
plead guilty.”). Indeed, Wiggins’s arguments in his motion to withdraw his
guilty plea contradict the argument that he would not have pleaded guilty but
for the district court’s allegedly improper participation in plea negotiations.
For example, Wiggins argued in that motion that he only pleaded guilty
because of an informal agreement with the Government about the release of
Smith and Mitchell. 2
       Thus, Wiggins has failed to demonstrate that, under plain error review,



       2 Additionally, Wiggins appears to argue that the district court’s comments were so
inherently coercive that there is at least a reasonable probability that he would not have
pleaded guilty but for the district court’s comments. However, even if such a situation could
arise, the district court’s comments here did not rise to such an inherently coercive level.
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                                 No. 13-51101
his guilty plea should be vacated.
           III. MOTION TO WITHDRAW THE GUILTY PLEA
      Wiggins also challenges the district court’s denial of his motion to
withdraw his guilty plea. After a district court accepts a defendant’s guilty
plea but prior to sentencing, the district court may allow the defendant to
withdraw his guilty plea if “the defendant can show a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We review the denial
of a motion to withdraw a guilty plea for abuse of discretion. United States v.
McKnight, 570 F.3d 641, 645 (5th Cir. 2009). We consider seven factors in
determining whether the district court should have allowed the defendant to
withdraw his guilty plea:
      (1) whether or not the defendant has asserted his innocence;
      (2) whether or not the government would suffer prejudice if the
      withdrawal motion were granted; (3) whether or not the defendant
      has delayed in filing his withdrawal motion; (4) whether or not the
      withdrawal would substantially inconvenience the court;
      (5) whether or not close assistance of counsel was available;
      (6) whether or not the original plea was knowing and voluntary;
      and (7) whether or not the withdrawal would waste judicial
      resources.
Carr, 740 F.2d at 343–44 (footnotes omitted). “Although this illustrative list
should be considered, the ultimate decision should be based on the ‘totality of
the circumstances.’” United States v. McElhaney, 469 F.3d 382, 385 (5th Cir.
2006) (quoting Carr, 740 F.3d at 344).          On appeal, Wiggins advances
arguments for all seven of the Carr factors. We address each factor in turn.
      For the first factor, Wiggins argues that he strongly asserted his
innocence. However, as the district court reasoned, Wiggins’s bare assertion
of his innocence was contradicted by his sworn admission during
rearraignment that the factual basis of his conviction was true. Therefore, the
district court did not abuse its discretion in finding that this factor lends no
support to the motion. See, e.g., McKnight, 570 F.3d at 649 (“Because ‘solemn
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                                   No. 13-51101
declarations in open court carry a strong presumption of verity,’ the district
court did not abuse its discretion in placing little weight on [the defendant’s]
assertion of innocence.” (quoting United States v. Lampazianie, 251 F.3d 519,
524 (5th Cir. 2001))); United States v. Myles, 623 F. App’x 178, 179 (5th Cir.
2015) (per curiam) (“In finding [the defendant’s] assertions of innocence
unpersuasive, the district court was entitled to rely on those solemn
declarations over her initial statement . . . .”).
      As to the second factor, Wiggins concedes that there would be at least
some inconvenience to the Government should the motion be granted. The
district court found that this factor weighed in favor of denying the motion in
part because this was a large and complex case, the Government had already
notified the potential witnesses that their testimony would no longer be
needed, and the Government’s two lead prosecutors were leaving government
employment. Based on those considerations, the district court did not abuse
its discretion in finding that this factor weighed against granting the motion.
See United States v. Clark, 931 F.2d 292, 294–95 (5th Cir. 1991).
      Regarding the third factor, Wiggins contends that he promptly notified
the district court of his desire to withdraw his guilty plea by mailing a letter to
the district court 15 days after he entered his guilty plea.           According to
Wiggins, the district court erred in considering the date that it received his
letter (i.e., five days after the letter was mailed) and the even later date that
the motion to withdraw was actually filed. But even if we accept that the
amount of delay should be measured from the time that Wiggins mailed the
letter, the 15-day delay still weighs against granting the motion under these
circumstances. See Carr, 740 F.2d at 345 (finding that a motion to withdraw
was not promptly filed following a 22-day delay because “[t]he purpose is not
to allow a defendant to make a tactical decision to enter a plea, wait several
weeks, and then obtain a withdrawal if he believes that he a made a bad choice
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                                   No. 13-51101
in pleading guilty”); United States v. Ard, 298 F. App’x 337, 339–40 (5th Cir.
2008) (per curiam) (finding that a 19-day delay weighed against granting a
motion to withdraw).
      As to the fourth factor, the district court found that having to repeat the
initial jury selection process would inconvenience the court “but not in a
significant way.” Both parties agree that the district court did not find under
this factor that, should the motion be granted, there would be a “substantial
inconvenience to the court.” However, even if this factor weighs in favor of
granting the motion under these circumstances, it does not “tip the scales to
the extent necessary to find an abuse of discretion.” See United States v.
Badger, 925 F.2d 101, 104 (5th Cir. 1991).
      Wiggins argues the fifth and sixth factors together on appeal.           The
district court engaged in a detailed analysis regarding whether close assistance
of counsel was available and whether Wiggins’s guilty plea was knowing and
voluntary. On appeal, Wiggins largely does not contest the district court’s
reasoning for these factors. And Wiggins concedes that he did “not specifically
contest[] either of these factors” in the district court. Instead, Wiggins argues
that “both counsel’s assistance and the voluntariness of his plea were tainted
because counsel had made Wiggins believe that, if he pleaded guilty, the
government would agree to release Smith and Mitchell.” Additionally, Wiggins
contends that there was substantial evidence of an informal agreement with
the Government that, if Wiggins pleaded guilty, the Government would release
Smith and Mitchell based both on his testimony and the fact that Smith and
Mitchell were actually released.
      The argument that Wiggins was coerced into pleading guilty because of
an informal agreement with the Government implicates the sixth factor, as
Wiggins’s reply brief appears to recognize by discussing this argument only in
the context of the sixth factor. Although this court takes “‘special care’ in
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                                 No. 13-51101
reviewing the voluntariness of ‘guilty pleas made in consideration of lenient
treatment as against third persons,’” see United States v. Harrison, 777 F.3d
227, 236 (5th Cir. 2015) (quoting United States v. Nuckols, 606 F.2d 566, 569
(5th Cir. 1979)), the district court did not err in finding that there was no
informal agreement with the Government that coerced Wiggins into pleading
guilty, see Lampazianie, 251 F.3d at 524 (“We have scoured the record and can
find no shred of evidence to support [the defendant’s] contention that he was
somehow coerced into the plea agreement by threats to institutionalize his
brother . . . .”). During rearraignment, Wiggins declared under oath that he
was voluntarily pleading guilty and that he was not being forced, threatened,
or coerced into pleading guilty. See Lampazianie, 251 F.3d at 524 (“[The
defendant] declared—under oath—in open court that he had not been
threatened or coerced in any way, and that he was entering the plea voluntarily
and fully informed.”). He also stated that there were no promises or offers that
induced him to plead guilty other than the plea agreement before the court.
Moreover, his testimony during the hearing on his motion to withdraw was
somewhat inconsistent on whether there was an actual informal agreement
with the Government to release Smith and Mitchell. At certain points, Wiggins
stated that it was only his impression that there was an informal agreement
but that nobody ever told him that there was an actual deal. And even if we
were to credit Wiggins’s assertion that there was an informal agreement with
the Government, there is no evidence in the record that the Government
threatened charges against Smith and Mitchell in bad faith such that this
factor should weigh in favor of granting the motion. See McElhaney, 469 F.3d
at 385–86 (“Where the prosecution has a good-faith basis to threaten charges
against a third-party, a defendant’s election to ‘sacrifice himself for such
motives’ is not a basis to challenge the voluntariness of the plea.” (quoting
Nuckols, 469 F.3d at 569)); see also Clark, 931 F.2d at 295 (“Though [the
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                                      No. 13-51101
defendant] asserts the government coerced him to make the plea by
threatening to indict his wife, there is no credible evidence that the
government was insincere in considering whether to prosecute [his wife].”).
Accordingly, the district court did not abuse its discretion in finding that the
sixth factor weighed against granting the motion. 3
        Finally, Wiggins contends that the seventh factor weighs in favor of
granting the motion. However, the district court declined to make specific
findings about this factor because Wiggins had failed to demonstrate, based on
the totality of the circumstances, that the motion should be granted. Given the
weight of the other factors, the district court did not err in not addressing this
factor. See Badger, 925 F.2d at 104 (“Although [the defendant] points out that
the district judge did not make specific findings on each of the Carr factors,
that circumstance does not establish that the district judge abused his
discretion by denying [the defendant’s] motions.”).
        In sum, based on the totality of the circumstances, the district court did
not abuse its discretion in denying Wiggins’s motion to withdraw his guilty
plea.
                                 IV. CONCLUSION
        For the foregoing reasons, the judgment of the district court is
AFFIRMED.




        3To the extent that Wiggins’s argument can be interpreted as implicating the fifth
factor (whether Wiggins had the close assistance of counsel), Wiggins similarly fails to
demonstrate that the district court abused its discretion in finding that the fifth factor
weighed against granting the motion, especially considering the other findings made by the
district court about the assistance of counsel that are not contested on this appeal. Cf.
McKnight, 570 F.3d at 648 (“We therefore cannot conclude that the district court abused its
discretion by denying [the defendant’s] motion to withdraw his guilty plea on this basis.”).
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