*

Honorable William W. Schwarzer, Senior U.S. District Judge

for the Northern District of California, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-2149.

UNITED STATES of America, Plaintiff-Appellee,

v.

Gary Lorenzo JOHNSON, Defendant-Appellant.

July 31, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 91-126-CR-Orl-19), Patricia C. Fawsett,

Judge.

Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER*

, District

Judge.

SCHWARZER, Senior District Judge:

Rule 11(e)(1) of the Federal Rules of Criminal Procedure

directs that the district court will not participate in any

discussions to reach a plea agreement. Appellant Gary Lorenzo

Johnson contends that the district court violated this injunction.

We reject the contention, and other claims asserted, and affirm.

Proceedings Below

On the eve of trial, Johnson pled guilty to two counts of an

eight-count indictment: count one, charging conspiracy to possess

with intent to distribute 50 grams of crack, and count five,

charging possession of five or more grams of crack with intent to

distribute. The government dismissed two forfeiture counts against

him. Johnson was sentenced but, following this court's decision in

United States v. Rockman, 993 F.2d 811 (11th Cir.1993), the

government moved for resentencing and this court remanded for
resentencing of Johnson. At the start of the resentencing hearing,

Johnson moved to withdraw his guilty plea, but the motion was

denied. He was sentenced to 127 months followed by five years

supervised release. On this appeal, Johnson raises several points,

the principal one being the alleged violation of Rule 11(e)(1).

Violation of Rule 11(e)(1)

Johnson contends that during the colloquy preceding entry of

his plea the court participated in the plea discussions in

violation of Rule 11(e)(1). He argues that the district court

violated Rule 11(e)(1) when, after he had said on at least three

occasions that he could not plead guilty to the amount of cocaine

charged by the government in the conspiracy count, the court made

the following statement:

Mr. Pesquera, let me discuss this with you and Mr. Johnson.

It would seem to me that if he pleads guilty to Count V, he is

admitting the substantive offense. Then the government will

come in and prove the conspiracy. He could certainly take a

gamble that the jury would find he had not conspired with the

substantive offense, but he would have already pled guilty to

the facts of the substantive offense, and the only issue would

be whether he conspired with anyone else. It doesn't have to

be a jury question as to the amount.

Johnson contends that when the court said, "let me discuss this

with you ...," she was participating in plea discussions.

To determine whether a violation of Rule 11(e)(1) occurred,

the court's statement must be viewed in context. At the plea

hearing, held on November 12, 1991, the following relevant

exchanges occurred:

THE COURT: What is the situation in this case?

MR. PESQUERA (Defense counsel): My client has decided to

enter a plea of guilty to both counts of the indictment in

which he appears.
MR. JANCHA: The government will be dismissing the forfeiture

count.

THE COURT: No plea agreement?

MR. PESQUERA: That's right. (Tr. 2)

 * * * * * *

After Johnson was sworn and gave his name, the court asked him:

Q. I've been advised you want to enter a plea of guilty to

Counts One and Five. Those are felony counts. Do you

understand that?

A. Yes, I do. (Tr. 3)

 * * * * * *

Q. I was told by Mr. Pesquera and Mr. Jancha [government

counsel] there is no plea agreement in this case. Do you

understand that?

A. Yes, Your Honor. (Tr. 4)

 * * * * * *

Q. Have you decided you just want to plead straight up?

A. Yes. (Tr. 5)

 * * * * * *

Q. Do you understand the charges against you?

A. Count One is the one I believe we are going to argue with.

Q. Count One is the conspiracy charge?

A. Yes, Your Honor.

Q. That charges a violation of Title 21, United States Code,

Section 846 ... (court describes the elements of the offense).

A. Yes.

Q. What are you telling me about an argument with the charge?

A. On our Count One it say [sic] 50 grams or more of a mixture

of cocaine base. What I'm saying is I didn't sell 50 grams.

I sold 34.6 grams.

Q. So you contest the amount of cocaine?
A. Yes, Your Honor.

Q. Do you contest anything else about the charges against you

in Count One?

A. No, besides the 50 grams or more.

Q. There is a disagreement as to the amount of cocaine and you

do enter a plea of guilty to the charge against you. You are

telling me you do not agree with the amount of cocaine, but

you do admit there was some cocaine involved?

A. Yes, Your Honor.

Q. (Court explains that the court will rule on amount of

cocaine at the sentencing hearing and that it could impact the

sentence.) (Tr. 7-9)

 * * * * * *

Q. ... You understand you have no obligation to enter a plea

of guilty to any charge in this case? Is that clear to you?

A. Yes, Your Honor.

Q. You have told me you want to plead guilty to Counts [sic]

One and Count Five. Do you feel anyone had done anything

which you consider wrong or unfair to get you to plead guilty

to these charges?

A. I wouldn't call it unfair, but in Count One with the amount

and years I'm facing, I feel a man should be tried on what he

sold....

THE COURT: Mr. Jancha, do you feel the government has

evidence there was the ability to deliver the difference

between the 36 and in excess of 50 grams that's been charged?

MR. JANCHA: Yes, Your Honor. (Tr. 10-11)

 * * * * * *

THE COURT: Mr. Johnson, I'll go back to what I told you a few

minutes ago. I will have to hear evidence on this. I want to

stress to you I could rule against you on this. I don't know.

I haven't heard the evidence, and I've got an open mind on it.

If I rule against you, that could increase the penalty. You

understand that?

A. Yes, Your Honor.

Q. So if you enter a plea of guilty and we get to the

sentencing and you don't like your sentence, you are not going

to be able to withdraw your plea of guilty. Do you
understand?

A. Yes.

Q. Do you feel that you have been threatened, pressured or

coerced or treated improperly in order to get you to plead

guilty?

A. It would go back to the same statement.

Q. The disagreement over the amount?

A. Yes.

Q. Aside from your disagreement over the amount, any improper

position that's been taken, or pressure placed on you?

A. No, Your Honor.

Q. Do you want to plead guilty to these charges because you

are guilty to [sic] the charges, or for some other reason,

even being mindful that you disagree as to the amount?

A. Yes, I will want to plead guilty because I am guilty. (Tr.

11-13)

 * * * * * *

After eight more transcript pages of colloquy concerning

sentencing, Johnson asked:

Q. ... May I ask you something?

A. Yes.

Q. You say I have two counts. Ain't no way I could plead

guilty to Count Five and try to fight the Count One? I can't

do nothing like that?

THE COURT: Well, Mr. Pesquera?

MR. PESQUERA: I explained to him the government is not

willing to dismiss any of these two counts. We would have to

plead to both counts.

THE COURT: Could he plead to one and try to [sic] the other

one? I'm not aware that's a possibility.

MR. JANCHA: Judge, I'm ready to try the case. Theoretically,

it's possible. I don't think it would be a real smart move if

he took the stand, overt acts of conspiracy in Count One. If

he wanted to do it, that would be fine with me, but I don't

believe it would be of any benefit.
THE COURT: Mr. Pesquera, let me discuss this with you and Mr.

Johnson. It would seem to me that if he pleads guilty to

Count Five, he is admitting the substantive offense. Then the

government will come in and prove the conspiracy. He could

certainly take a gamble that the jury would find he had not

conspired with the substantive offense, but he would have

already pled guilty to the facts of the substantive offense,

and the only issue would be whether he conspired with anyone

else. It doesn't have to be a jury question as to the amount.

MR. PESQUERA: That's what I was just explaining to him.

THE COURT: Mr. Johnson, I believe you could go to trial on

Count One and plead guilty to Count Two [sic]. You are going

to have to decide that and talk to your attorney and tell me

what you want to do.

THE DEFENDANT: I plead guilty to both of them.

THE COURT: Even though you know you could go to trial on one

and plead guilty to the other?

THE DEFENDANT: Yes, Your Honor. (Tr. 21-23)

 * * * * * *

After further colloquy, the court addressed the factual basis for

the conspiracy charge.

MR. PESQUERA: Based on my conversation with the defendant, I

don't think there would be a sufficient factual basis to

accept a guilty plea on the conspiracy count. He denies he

ever—

MR. JANCHA: The government is ready for trial, Your Honor.

THE COURT: Mr. Johnson, I am going to decline to accept your

plea to Count One because you are telling me you didn't

conspire with anyone else.... (Tr. 28-29)

 * * * * * *

After further colloquy as to factual basis:

THE COURT: Mr. Jancha, I am uncomfortable accepting a plea of

guilty to Count One based on a statement he bought from

someone who did not know he was going to distribute it. (Tr.

29)

 * * * * * *

After colloquy with government counsel:
THE COURT: Mr. Pesquera and Mr. Johnson, I am going to let

you make a decision whether you want to proceed on Count Five.

MR. PESQUERA: If we are going to try the case, we might as

well try the whole thing.

THE COURT: Are you going to follow your attorney's advice?

THE DEFENDANT: Yes.

THE COURT: So you are withdrawing your plea. I am not going

to accept your plea to Count One if you are telling me you did

not conspire with anybody, you did not possess with intent to

distribute cocaine. That's what I understood you saying.

THE DEFENDANT: What he just said, could I answer on that? I

would like to question what he said, what Mr. Miles [with whom

he allegedly conspired] has said.

THE COURT: You want to talk to me about that?

THE DEFENDANT: Explain when me and Mr. Miles had that

conversation.

THE COURT: Did you have a conversation?

THE DEFENDANT: Yes, we had a conversation.

THE COURT: Mr. Jancha has stated facts which show conspiracy.

If your client wants, I'll let Mr. Jancha make a statement.

If that appears to me to be sufficient to uphold the

conspiracy plea of guilty, I'll ask you if what you heard is

true and correct, and if you tell me yes, I will entertain

your question. Make a statement of the facts the government

would intend to prove beyond a reasonable doubt if this case

went to trial. I am going to ask you if you understand and if

it is true and correct. (Tr. 29-30)

 * * * * * *

Government counsel makes proffer of the conspiracy evidence and

counsel recites the evidence at length. (Tr. 30-32)

 * * * * * *

THE COURT: Did you understand what Mr. Jancha said to me and

do you feel it is true and correct?

THE DEFENDANT: Yes.

THE COURT: I think that does show conspiracy. Do you take

issue?
MR. PESQUERA: No, I agree with the Court.

THE COURT: Do you want me to go ahead in this proceeding.

THE DEFENDANT: Yes, Your Honor.

THE COURT: Is there any anything you want to tell me or want

to ask me that bears on your decision to plead guilty that I

have not covered with you?

THE DEFENDANT: No, ma'am, Your Honor.

THE COURT: Anything you want to talk to your attorney about

privately before I ask you how you plead?

THE DEFENDANT: No. (Court then takes guilty plea to Count

One and Count Five.) (Tr. 32-33)

Rule 11(e)(1) provides that "[t]he attorney for the government

and the attorney for the defendant ... may engage in discussions

with a view toward reaching an agreement that, upon entering of a

plea of guilty ..., the attorney for the government will [dismiss

charges, agree to recommend or not oppose a request for a

particular sentence, or agree that a specific sentence is

appropriate]." Fed.R.Crim.P. 11(e)(1). It then states: "The

court shall not participate in any such discussions." Id.

 Here, the court was advised by counsel at the outset of the

proceedings that there was no plea agreement and none was

contemplated. Johnson intended to plead to both counts with which

he was charged and the government then intended to dismiss the

forfeiture count. No discussions concerning the terms of the plea

or the sentence that would be imposed occurred during the colloquy

by the court, other than the advice Rule 11(c) requires the court

to give a defendant. Thus, it cannot be said that the court

participated in "discussions with a view toward reaching an

agreement." Compare United States v. Bruce, 976 F.2d 552, 555 (9th
Cir.1992) (court explained advantages of sentencing under plea

bargain offered by government and urged defendants to "think

seriously about it.").

Because no plea discussions occurred here, the literal terms

of the rule do not apply. But the decisions under it have put a

gloss on the rule to implement a broader purpose. As stated in

United States v. Casallas, 59 F.3d 1173 (11th Cir.1995), "Rule 11's

prohibition on court participation in plea negotiations "is

designed to totally eliminate judicial pressure from the plea

bargaining process.' " Id. at 1178 (quoting United States v.

Corbitt, 996 F.2d 1132, 1135 (11th Cir.1993)). "Three rationales

have been advanced for the strict prohibition on judicial

participation: (1) "judicial involvement in plea negotiations

inevitably carries with it the high and unacceptable risk of

coercing a defendant to accept the proposed agreement and plead

guilty'; (2) the prohibition "protects the integrity of the

judicial process'; and (3) the ban preserves the judge's

impartiality after the negotiations are completed." Casallas, 59

F.3d at 1178 (quoting Bruce, 976 F.2d at 556-57). Thus, we have

found a violation of the rule where the court in the colloquy with

defendant contrasted the 15-year minimum sentence defendant faced

by going to trial in Texas with the 10-year minimum term he faced

if he plead guilty and advised him to "talk to his lawyer some and

see if that is really what he wants to do." Casallas, 59 F.3d at

1176, 1178. Similarly, we found a Rule 11 violation where the

court told defendants that they had until noon that day to file

plea agreements, after which time they "will plead straight up or
... go to trial" and then said of defendants in the court generally

that "they'll get a fair trial, and if they get found guilty,

they'll also get a fair sentence, fairly high." Corbitt, 996 F.2d

at 1133-35.

 We have interpreted Rule 11(e) as a "bright line rule" "

"prohibit[ing] the participation of the judge in plea negotiations

under any circumstances: it is a rule that, as we have noted,

admits of no exceptions.' " Casallas, 59 F.3d at 1177 (quoting

Bruce, 976 F.2d at 558); see also United States v. Adams, 634 F.2d

830, 839 (5th Cir.1981) ("Rule 11(e)(1) establishes an absolute ban

on judicial participation [in plea negotiations]"). We have not,

however, addressed the specific question of what constitutes plea

discussions (or negotiations) within the meaning of Rule 11.

Casallas and Corbitt indicate that discussion of the penal

consequences of a guilty plea as compared to going to trial is

inherently coercive, no matter how well-intentioned. As we

explained in Corbitt:

The purpose and meaning of [the Rule 11(e)(1) ] prohibition

are that "the sentencing judge should take no part whatever in

any discussion or communication regarding the sentence to be

imposed prior to the entry of a plea of guilty...."

The primary concern of those who would dissociate

the judge from the plea bargaining process has been that

judicial intervention may coerce the defendant into an

involuntary plea that he would not otherwise enter.

996 F.2d at 1134 (quoting United States v. Werker, 535 F.2d 198,

201 (2d Cir.), cert. denied, 429 U.S. 926, 97 S.Ct. 330, 50 L.Ed.2d

296 (1976)) (emphasis added).

The statements made by the district court here did not touch

on the sentence Johnson might receive; at no point in the colloquy
did the court contrast the consequences Johnson faced were he to go

to trial with the consequences he faced if he pled.

Nor can the court's statements be read as coercive in any

other way. Far from pressuring Johnson into entering a plea, the

judge went out of her way to remind him repeatedly that he was free

to make the choice. The complained-of statement that Johnson takes

out of context occurred near the end of the lengthy plea-taking

colloquy. See supra p. 2875 (court's statement beginning "Mr.

Pesquera, let me discuss this...."). In response to Johnson's

question whether he could plead to the substantive count and go to

trial on the conspiracy, the court simply explained (correctly)

that because he would have already admitted the substantive

offense, the government would then only have to prove that he

conspired. The most natural reading of the court's statements in

context is that they warned Johnson of the obvious risk should he

plead guilty to the substantive offense and then go to trial on the

conspiracy charge. In any event, following the complained-of

statements, the judge made it clear that Johnson had the choice:

"I believe you could go to trial on Count One and plead guilty to

Count Two [sic, Five]. You are going to have to decide that and

talk to your attorney and tell me what you want to do." See supra

p. 2876. That Johnson himself did not regard the complained-of

statement as coercive is shown by the fact that he then indicated

that he intended to go to trial on both counts. See supra pp.

2876-2877.

Given Johnson's earlier vacillations, the court sought to

verify that Johnson was withdrawing his plea. See supra p. 2877.
But in response, Johnson resumed the colloquy by asking about the

factual basis for the conspiracy charge. With the apparent

agreement of Johnson and his counsel, the court then invited

government counsel to state the government's conspiracy evidence.

Johnson agreed that government counsel's statement was true and

correct, the court found that a factual basis existed, and Johnson

then pleaded guilty to both counts. See id.

In sum, we find nothing coercive in the manner in which the

court conducted the plea hearing. The court went to some lengths

to satisfy the requirements of Rule 11(c)(1) (requiring the court

to inform the defendant of the nature of the charge to which the

plea is offered) and Rule 11(f) (requiring the court to inquire as

to the factual basis for the plea). The district court must, of

course, take care not to conduct the plea taking process in a way

that may coerce a defendant; thus, once a defendant indicates a

wish not to proceed further, that wish must be honored. In this

case, while Johnson at times raised questions indicating doubts

about whether he should plead guilty, at no time did he accept the

court's invitations to break off the colloquy and go to trial.

Accordingly, we find no violation of Rule 11.

Factual Basis for the Plea

 Johnson argues that there was no factual basis for the plea

because he denied having participated in a conspiracy and admitted

only to having sold 34 grams of crack, not 50 grams as charged.

Johnson's contention is barred by his guilty plea. "A guilty plea,

since it admits all the elements of a formal criminal charge,

waives all nonjurisdictional defects...." United States v.
Fairchild, 803 F.2d 1121, 1124 (11th Cir.1986) (quoting United

States v. Jackson, 659 F.2d 73, 74 (11th Cir.1981), cert. denied,

455 U.S. 1003, 102 S.Ct. 1637, 71 L.Ed.2d 870 (1982)) (internal

quotations omitted) (holding claim of insufficient factual basis to

support indictment waived by plea); see also United States v.

Willis, 992 F.2d 489, 490 (4th Cir.) ("A knowing, voluntary, and

intelligent guilty plea to an offense conclusively establishes the

elements of the offense and the material facts necessary to support

the conviction."), cert. denied, 510 U.S. 857, 114 S.Ct. 167, 126

L.Ed.2d 127 (1993).

 Moreover, Johnson's argument is based on the fallacious

assumption that the government had the burden of establishing the

quantity of drugs attributed to Johnson. The quantity of drugs

involved is not an element of the offense but is relevant only to

sentencing. Wilson v. United States, 962 F.2d 996, 998 n* (11th

Cir.1992); see also United States v. Musa, 946 F.2d 1297, 1302-03

(7th Cir.1991) (sufficient factual basis for plea where defendant

disputed the amount of drugs but not the facts of the offense).

 Finally, the record amply supports the plea. At the

plea-taking hearing, counsel for the government recited at length

what the government's evidence would show at trial. Among other

things, the government offered to prove that Johnson's alleged

co-conspirator Miles had previously dealt with the government

agent, that Miles and Johnson had conversations about that dealing,

that Miles had told him that the agent paid in $100 bills, and that

Miles was uncomfortable dealing with the agent whom he suspected of

being a police officer. Johnson delivered 36.8 grams of crack to
an agent and offered to deliver three ounces the next day. Johnson

admitted these facts to be true and correct. We conclude that the

district court did not abuse her discretion in finding a factual

basis for the plea. See United States v. Lopez, 907 F.2d 1096,

1100-01 (11th Cir.1990).

Denial of Motion to Withdraw Guilty Plea

 Johnson moved on the day of resentencing (some two years

after entry of the plea) to withdraw his plea. The court denied

the motion. Under Fed.R.Crim.P. 32(d), "the defendant has the

burden of showing a "fair and just reason' for withdrawal of his

plea." United States v. Buckles, 843 F.2d 469, 471 (11th

Cir.1988), cert. denied, 490 U.S. 1099, 109 S.Ct. 2450, 104 L.Ed.2d

1005 (1989). "In determining whether the defendant has met this

burden, the district court may consider the totality of the

circumstances surrounding the plea." Id. at 471-72. The decision

to allow withdrawal of a guilty plea is left to the sound

discretion of the trial court and may be reversed only if it is

arbitrary or unreasonable. Id. at 471.

 The only argument Johnson made for withdrawing his plea is

that the district court should have known that Johnson did not

knowingly plead to the conspiracy count. Johnson is a high school

graduate, attended technical school for two years, and admits to

having no trouble reading and understanding English. The district

court held an evidentiary hearing on the motion. Johnson argues

that the transcript of the plea hearing was wrong wherever it said

that Johnson was pleading guilty to both counts. The court

determined that the transcript was correct. Johnson has not shown
that the district court was in error. The denial of the motion was

neither arbitrary nor unreasonable.

Ineffective Assistance of Counsel

Johnson argues that his trial counsel "failed to require a

factual basis for all elements of the conspiracy" and "failed to

properly apply" the Guidelines Manual to the charges. The argument

is baseless, first, because there was no legal error in connection

with the entry of the plea, and, second, because the sentence

imposed, 136 months, was within the range of the 121-150 months

estimated by his counsel at the plea-taking hearing.

The judgment is AFFIRMED.