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.
2

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.
3

DIANA GRIBBON MOTZ, Circuit Judge:

Oluwaseun Sanya contends that his guilty plea to accessdevice 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 coconspirators 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 
4

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 
5

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 
6

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 
7

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 
8

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.
9

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 wellsettled. 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 
10

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.
11

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)
12

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.
13

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 
14

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).
15

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. 
16

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 
17

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 
18

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 preplea intimation of a “less pleasant sentence if we take this in 
19

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.
20

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 
21

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.
22

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.
23

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

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

VACATED AND REMANDED
24

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 
25

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 casespecific 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. 
26

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 
27

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.