United States Court of Appeals

for the Fifth Circuit

No. 20-30181

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Derrick Curry, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:19-CR-70-1

Before Wiener, Southwick, and Duncan, Circuit Judges.

Per Curiam:*

Derrick Curry pleaded guilty, pursuant to a written plea agreement, to 

possessing a firearm after felony conviction and was sentenced to 51 months 

of imprisonment. Prior to sentencing, months after Curry initially pleaded 

guilty and signed his plea agreement, the district court retook the plea 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 9, 2020

Lyle W. Cayce

Clerk

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because Curry expressed concerns that the initial plea was entered in a 

witness room, not a courtroom. Prior to admonishing Curry at the second 

hearing, the district court explained that it had received the presentence 

investigation report (PSR) and that it intended to sentence Curry in 

accordance with what it told the prosecutor and defense counsel in chambers. 

On this basis, Curry contends that the district court violated Federal Rule of 

Criminal Procedure 11(c)(1), which prohibits district courts from 

participating in plea negotiations, when it advised Curry and his counsel of 

its intended sentence before the second plea hearing. He argues that it is 

reasonably probable that, but for the “highly coercive atmosphere” created 

by these statements, he would have gone to trial. 

As the parties agree, we review Curry’s claim for plain error because 

he did not object on this basis to the district court. United States v. Draper, 

882 F.3d 210, 215 (5th Cir. 2018). To establish plain error, Curry must show 

(1) an error, (2) that was “clear or obvious, rather than subject to reasonable 

dispute,” and (3) that affected his substantial rights. See Puckett v. United 

States, 556 U.S. 129, 135 (2009). “‘[A] defendant who seeks reversal of his 

conviction after a guilty plea, on the ground that the district court committed 

plain error under Rule 11, must show a reasonable probability that, but for the 

error, he would not have entered the plea.’” United States v. Davila, 569 U.S. 

597, 608 (2013) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 

(2004)). If these conditions are met, we have the discretion to correct the 

error and should do so if it (4) “seriously affects the fairness, integrity or 

public reputation of judicial proceedings.” Rosales-Mireles v. United States, 

138 S. Ct. 1897, 1905 (2018) (cleaned up). 

Here, even assuming that the district court committed an error that is 

clear or obvious, Curry fails to show that it affected his substantial rights. We 

consider the question “in light of the full record.” Davila, 569 U.S. at 612. 

Curry signed a plea agreement and entered a guilty plea months before the 

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challenged statements. As Curry himself explains, the second plea hearing 

was held “out of an abundance of caution.” Finally, nothing in the record 

suggests the district court pressured or incentivized Curry by conveying a 

belief that a plea would be in his best interest. Given these facts, Curry fails 

to show a reasonable probability that he would have proceeded to trial but for 

the district court’s comments. See id., 569 U.S. at 608.

AFFIRMED.

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