1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0082p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

DANIEL L. USHERY, JR., 

Defendant-Appellant. 

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No. 14-5046 

Appeal from the United States District Court 

for the Eastern District of Kentucky at Covington. 

No. 2:13-cr-00027—David L. Bunning, District Judge. 

Argued: March 4, 2015 

Decided and Filed: May 6, 2015 

Before: CLAY, GILMAN, and SUTTON, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Christopher F. Cowan, Columbus, Ohio, for Appellant. Daniel Steven Goodman, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON 

BRIEF: Christopher F. Cowan, Columbus, Ohio, for Appellant. Daniel Steven Goodman, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Anthony J. Bracke, 

UNITED STATES ATTORNEY’S OFFICE, Ft. Mitchell, Kentucky, for Appellee. 

 GILMAN, J., delivered the opinion of the court in which SUTTON, J., joined. CLAY, J. 

(pp. 20–27), delivered a separate dissenting opinion. 

>
No. 14-5046 United States v. Ushery Page 2

_________________ 

OPINION

_________________ 

 RONALD LEE GILMAN, Circuit Judge. During an August 14, 2013 rearraignment, 

Daniel L. Ushery, Jr. pleaded guilty to the distribution of crack cocaine. He was not prepared to 

plead guilty when the rearraignment first began. Instead of adjourning the rearraignment, 

however, the district court oversaw a back-and-forth negotiation between the government’s 

attorney and Ushery’s counsel concerning specific provisions of a potential plea agreement. 

Only after the government offered to strike the appeal-waiver provision from the proposed plea 

agreement—which occurred during the course of the colloquy with the district court—did 

Ushery express an intent to plead guilty. The court eventually accepted Ushery’s plea and, in 

December 2013, sentenced him to 252 months in prison, an upward variance of 17 months from 

the top end of the applicable Sentencing Guidelines range. 

Ushery timely appealed, arguing that (1) the district court violated Rule 11(c)(1) of the 

Federal Rules of Criminal Procedure’s ban against judicial participation in plea discussions, 

(2) Ushery’s exclusion from an August 6, 2013 pretrial teleconference violated his right to be 

present at every critical stage of the proceedings, and (3) his 252-month sentence was 

substantively unreasonable. For the reasons set forth below, we AFFIRM the judgment of the 

district court. 

I. BACKGROUND

A. Underlying offense 

Ushery, in April 2012, sold approximately half a gram of crack cocaine to a confidential 

informant in Campbell County, Kentucky for $100. When a police officer attempted to arrest 

Ushery for the offense, Ushery escaped in his car, running red lights and stop signs in the 

process. Only when Ushery crashed his car into a shed did the motorized chase end. He then 

fled on foot until he was eventually apprehended. The pursuing officer dislocated his shoulder in 

the process and subsequently retired due to the injury. 
No. 14-5046 United States v. Ushery Page 3

Upon Ushery’s arrest, he was found to be in possession of small amounts of heroin, crack 

cocaine, and marijuana, as well as $329.50 in cash. Ushery also admitted to swallowing two 

bags of heroin during the pursuit. He further admitted to selling drugs in the past. At the 

hospital where he was transported, Ushery threatened to kill the arresting officer and the officer’s 

family. 

While in jail, Ushery called his girlfriend and asked her to retrieve money from a storage 

unit in Cincinnati, Ohio. The call was recorded by the police. After obtaining a search warrant, 

the police searched the storage unit and seized $8,781 in cash, a Marlin rifle, a .22 caliber 

handgun, ammunition, two boxes of baseball cards, and a digital scale. 

A grand jury indicted Ushery in May 2013 for distributing crack cocaine, for possessing 

crack cocaine with the intent to distribute, and for possessing heroin with the intent to distribute, 

all in violation of 21 U.S.C. § 841(a)(1). The indictment also sought criminal forfeiture of the 

items seized from Ushery’s person and from his storage unit. As part of the proceedings, the 

government filed a notice pursuant to 21 U.S.C. § 851(a)(1) that Ushery had been convicted of 

three prior felony drug offenses. 

B. Arraignment and plea discussions 

Ushery pleaded not guilty during his initial arraignment on May 16, 2013. On June 27, 

2013, Ushery’s counsel filed a motion for rearraignment, which the district court set for July 2. 

But Ushery again declined to plead guilty at the July 2 rearraignment, despite his counsel 

informing the court that Ushery had previously told counsel that “he was not going to trial” and 

that “he would have to plead.” His counsel alerted the district court to Ushery’s concern about 

being sentenced as a career offender, relating Ushery’s statement to counsel that “he cannot take 

that much time.” 

During the rearraignment, Ushery expressed frustration with his counsel: “[My attorney 

is] making moves in this case without me. So I don’t even feel comfortable with him 

representing me. . . . I would like, if possible, just to have another attorney.” The court granted 

Ushery’s motion for new counsel and scheduled a status conference for July 9, 2013. 
No. 14-5046 United States v. Ushery Page 4

At the July 9, 2013 status conference, Ushery’s new counsel stated that he and Ushery 

were “on the same page,” and that he had explained to Ushery that they would either “resolve 

[the case] by plea or . . . resolve it by trial.” The district court set August 19, 2013 as the trial 

date and August 6, 2013 as the date of the final pretrial conference. It also set August 2, 2013 as 

the last day for Ushery to file a motion for rearraignment to enter a guilty plea. Ushery’s counsel 

filed such a motion on August 2, at which time he also filed a motion to continue the 

rearraignment date. The court granted both motions and converted the August 6 pretrial 

conference into a telephonic status conference. 

 1. The August 6, 2013 teleconference 

On August 6, 2013, the government’s attorney and Ushery’s counsel, but not Ushery, 

participated in a teleconference with the district court. The court called for the conference “to 

determine how [to] proceed going forward.” Ushery’s counsel informed the court that he had 

filed the motion for rearraignment “because there were concerns” about the court’s deadline for 

doing so, but that Ushery had not yet made a decision. In discussing whether to push the trial 

date back a week, the court asked if Ushery needed the additional time “to try to work out final 

details of a plea agreement.” Ushery’s counsel responded affirmatively: “The resolution is a 

plea or a trial. Well, I can represent [that Ushery] doesn’t want to go to trial, but he’s concerned 

about signing. I said you have to make a decision. If I have a little more time, I can get it 

resolved.” 

In response, the court asked if Ushery’s counsel thought “it would help to have a hearing 

with [Ushery] to discuss that with him.” Counsel said yes. The court accordingly set a 

“tentative plea date” for August 14, 2013, and moved the trial date to August 26, 2013. It also 

stated that “if the defendant pleads guilty on [August 14], he will be entitled to all points for 

acceptance of responsibility. Any pleas after that date will jeopardize that.” 

 2. The August 14, 2013 rearraignment 

The district court began the August 14, 2013 rearraignment by informing Ushery that the 

government’s attorney and Ushery’s counsel had participated in a brief teleconference with the 

court “to discuss the potential of having [Ushery] enter a plea of guilty.” So that Ushery would 
No. 14-5046 United States v. Ushery Page 5

“receiv[e] all credits for acceptance of responsibility,” the court stated that August 14 was “like a 

drop-dead date” for pleading guilty. Ushery’s counsel replied by saying that Ushery would not 

be pleading guilty that day: “We’re not at this point prepared to enter that plea.” Just a few 

sentences later, Ushery’s counsel reiterated the point: “At this stage, [Ushery]’s not ready to 

enter a plea. As I said to him, I’ll be here on the 26th.” 

The district court, however, continued to engage with Ushery’s counsel, and soon with 

Ushery himself, about the latter’s decision regarding a potential guilty plea: 

[USHERY’S COUNSEL]: . . . [Ushery] does not want to waive his right to 

appeal. 

THE COURT: He doesn’t need to waive his right to appeal. 

[USHERY’S COUNSEL]: If I’m not mistaken, you’re indicating you’re satisfied 

with the plea agreement with the exception of paragraph 8. Is that accurate, 

Daniel? 

THE DEFENDANT: Somewhat. I mean, I feel like there’s too much time 

involved. But I would like to have a right to appeal, because I want my case 

[reviewed], because I feel like I’m being muscled into taking this time. 

THE COURT: You don’t need to be muscled to do anything, sir. You have the 

right to a jury trial. We have a jury trial on the 26th. 

THE DEFENDANT: It’s obvious I’m going to lose the jury trial. 

THE COURT: All I’ve done is review the record. I know what the criminal 

complaint and the affidavit says. I know generally what the facts are going to be, 

as presented to the jury. Guilt or innocence is one determination. Sentencing is 

another determination. Of course, what you do today or potentially do today 

impacts the sentence, and I’m sure [your attorney] has told you that. I am not 

going to allow you, nor is [your attorney] going to allow you to be muscled into 

doing anything that you don’t want to do yourself. 

Ushery continued to articulate his hesitation with pleading guilty: “I’ve been informing 

[the government] that I didn’t want to go to trial. I would just -- like 15 years is too stiff. . . . I’m 

trying to figure out a way to attack this career criminal [enhancement] without wasting nobody’s 

time.” The court responded by assuring Ushery that he could make whatever arguments he felt 

appropriate, while also acknowledging that the court would have to consider the Sentencing 

Guidelines, including possible career-offender status, in determining Ushery’s sentence. Ushery 

was again advised by the court that he could plead guilty, with or without a plea agreement, or 

instead go to trial. 
No. 14-5046 United States v. Ushery Page 6

 But the district court also warned Ushery about the consequences of failing to plead that 

day: “[T]oday is the last date that I’m going to permit you to plead guilty if you want to plead 

guilty and receive that third point for acceptance of responsibility,” and explained the purpose 

behind the third point. The government’s attorney then interjected as follows: 

Judge, if our holdup [is that] Mr. Ushery would like to reserve the right to appeal 

his sentence, I’m willing to amend the plea agreement to allow him to appeal the 

length of his sentence. If that’s our holdup here and if that’s what Mr. Ushery 

was looking for in a plea agreement that he didn’t have before, I’m willing to do 

that. I know that’s not a negotiation with the Court, and the Court stays out of 

those things. 

But Mr. Ushery, I guess my point is if the agreement is acceptable except for the 

language in paragraph 8, then we can change that to say that with the exception 

that the defendant may appeal the length of sentence, period. That way, whatever 

sentence is imposed, Mr. Ushery will have the right to appeal. If that’s the thing 

holding Mr. Ushery up, I’m willing to make that concession, given the nature of 

the background of this case. 

The district court responded, “Very well,” before either Ushery or his counsel had said a 

word. After conferring with Ushery off the record, his counsel said to the court that Ushery 

“inten[ds] to enter a guilty plea, but he adamantly does not want to waive any appeal as it relates 

to the length of the sentence.” The government then agreed to delete paragraph 8, which 

contained the appeal waiver, from the plea agreement. 

 With the agreement not yet finalized, the discussion next turned to forfeiture: 

[USHERY’S COUNSEL]: We’ll have to have a hearing on the forfeiture. We’re 

not talking forfeiture. 

THE COURT: One of the items of forfeiture is baseball cards. 

[USHERY’S COUNSEL]: That’s one of his gripes. I can understand that too. 

. . . 

[GOVERNMENT’S COUNSEL]: If our holdups are the appeal and the baseball 

cards, those things aren’t sufficiently -- if he wants to enter a guilty plea, we’ll 

cross out paragraph 8 and we’ll return the baseball cards. 

THE COURT: All right. 

[USHERY’S COUNSEL]: He doesn’t want to waive his right to a forfeiture 

hearing on the money. I’m not trying to negotiate with the Court. I beg your 

pardon for not standing. 
No. 14-5046 United States v. Ushery Page 7

[GOVERNMENT’S COUNSEL]: We’ll litigate the forfeiture at the sentencing. 

[USHERY’S COUNSEL]: That’s what we’ll do, litigate it at the sentencing. 

THE DEFENDANT: I don’t know really what’s going on because I don’t have 

no -- 

[USHERY’S COUNSEL]: That’s what we intend to litigate, you got me? I think 

things are in order, Your Honor. 

 The district court then asked the parties if they had reached a written agreement: “Do we 

have a written plea agreement that is commensurate with the agreement to adjudicate any 

disputes regarding the forfeiture allegation at sentencing and to strike the two boxes of baseball 

cards from the agreement to allow those to be returned to him?” The government answered that 

they did: “Judge, we’ll just remove paragraph[s] 6 and 8 from the plea proposal. Paragraph 6 is 

the one that says he agrees to forfeiture. Paragraph 8 is the one that waives his appellate rights. 

We can cross those two paragraphs off, and I think we can proceed.” Without a word from either 

Ushery or his counsel, the court said that it would look at the modified agreement: “All right. If 

you’d like to propose that, I’ll take a look at it.” 

 Seeing that a plea agreement had been reached, the district court directed the clerk to 

place Ushery under oath and then proceeded to question him: 

THE COURT: Mr. Ushery, let me just start by confirming with you that you’ve 

had enough time to consult with your new lawyer . . . prior to today. Have you 

had enough time to talk to him about your options in this case? 

THE DEFENDANT: I mean, I really don’t feel like I have, but I guess. 

THE COURT: All right. What would more time do for you? 

THE DEFENDANT: I mean, I just, I’m really concerned about the career 

criminal [enhancement] because I don’t want to be sent away for the rest of my 

life. 

THE COURT: I recognize that, but would more time make it easier for you or 

more difficult? I’m trying to get to the bottom of your hesitation. The career 

offender provision of the guideline, I’ll go over it with you here in a little bit, but 

what I’m going to tell you now, what I told you earlier as you were sitting there, 

the Court will not muscle you, nor will your lawyer or the prosecutor, into doing 

something that you don’t want to do. 

Sometimes, individuals are given what’s called a Hobson’s choice, and that’s 

where all your choices are bad. This may be one of those times for you. 
No. 14-5046 United States v. Ushery Page 8

When the court again asked if Ushery had “had enough time to make that informed decision,” 

Ushery responded affirmatively: “Yes, sir.” 

 Ushery ultimately pleaded guilty to Count 1 of the indictment—the distribution of crack 

cocaine—in violation of 21 U.S.C. § 841(a)(1). Pursuant to the plea agreement, the other two 

counts were dismissed. The court accepted the plea, found Ushery guilty of the offense, vacated 

the August 26, 2013 trial date, scheduled a forfeiture hearing for December 3, 2013, and set the 

case for sentencing on December 17, 2013. 

C. Forfeiture and sentencing 

At the outset of the December 3, 2013 forfeiture hearing, Ushery’s counsel informed the 

district court that Ushery “desired to forego the hearing in lieu of a settlement.” The court 

promptly approved the parties’ settlement agreement, which provided for the forfeiture of the 

currency, guns, and ammunition and the return of the boxes of baseball cards, pocket digital 

scale, and backpack containing personal items.

That left only sentencing. The Presentence Report (PSR), prepared in November 2013, 

calculated Ushery’s adjusted offense level at 18, starting with a base offense level of 14 and 

adding two two-level enhancements. But the PSR also found that the career-offender 

enhancement applied, pursuant to U.S.S.G. § 4B1.1, such that Ushery’s actual base offense level 

was 34, regardless of the adjusted offense level. After reducing his offense level for the 

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), Ushery’s total offense level 

became 31. That offense level, combined with a criminal history category of VI, produced a 

Guidelines range of 188 to 235 months in prison. 

At the December 17, 2013 sentencing hearing, the district court first determined what 

Ushery’s adjusted offense level would have been in the absence of the career-offender 

enhancement. The court agreed with the PSR that a two-level enhancement applied for 

possessing a firearm and that another two-level enhancement applied for making a credible threat 

to use violence (against a government official and his family). In addition, the court found 

applicable a two-level enhancement for obstructing justice (by swallowing two bags of heroin 

during the pursuit) and a two-level enhancement for recklessly creating a substantial risk of 
No. 14-5046 United States v. Ushery Page 9

serious bodily injury (to a law-enforcement officer) in the course of fleeing. Ushery’s adjusted 

offense level was therefore 22 and not 18. But as the court pointed out, that had no actual effect 

on Ushery’s Guidelines calculation because the base offense level for career offenders is 34. The 

court agreed with the PSR that, with a three-level reduction for acceptance of responsibility and a 

criminal history category of VI, Ushery’s advisory Guidelines range was 188 to 235 months in 

prison. 

The district court next considered the 18 U.S.C. § 3553(a) sentencing factors. It 

emphasized that Ushery has “been a drug trafficker for practically [his] entire life in one way, 

shape or fashion.” The court also pointed out that other enhancements that would have 

applied—for possession of a firearm, threatening to use violence, obstruction of justice, and 

reckless endangerment during flight—were not taken into account by the career-offender 

enhancement that ultimately applied. Referring again to those aggravating factors, the court 

expressed the need to impose “[a] sentence that reflects the serious[ness] of the offense.” It 

specifically noted the damage that Ushery had caused: “Your flight caused an injury that caused 

a police officer to ultimately retire. Your flight caused property damage to an individual who 

came here for the sentencing today.” The court further pointed to Ushery’s “very significant” 

criminal history (including more than 10 juvenile and 20 adult convictions) and reasoned that 

prior sentences had had “no deterrent effect” on Ushery thus far. 

As for potentially mitigating factors, the district court noted Ushery’s difficult 

upbringing, his mental-health problems, and the small amount of drugs at issue in the present 

case. Nevertheless, the court decided that “a variance upward is necessary to reflect the 

seriousness of the offense and to provide just punishment as well as protect the public, given the 

fact that the defendant has been a menace to society practically his entire life.” It also noted that 

“a sentence [of 120 months] as requested by the defendant would create a disparity among 

similarly situated defendants convicted of similar offenses.” 

The district court ultimately sentenced Ushery to 252 months of imprisonment, an 

upward variance of 17 months from the top of the applicable Guidelines range, to be followed by 

ten years of supervised release, which was within the Guidelines range of six years to life. 
No. 14-5046 United States v. Ushery Page 10

Ushery timely filed this appeal in January 2014, after the court granted him an extension of time 

to do so. 

II. ANALYSIS

A. The district court did not commit plain error, even if it improperly participated in 

plea discussions during Ushery’s August 14, 2013 rearraignment 

Ushery argues that the district court violated Rule 11(c)(1) of the Federal Rules of 

Criminal Procedure by participating in plea discussions at his August 14, 2013 rearraignment. 

By allowing the parties to negotiate the final terms of a plea agreement in its presence, the 

district court at the very least did not follow best practices, and may in fact have violated Rule 

11(c)(1). But Ushery has not met his burden of showing that any error affected his substantial 

rights, as the plain-error standard of review requires. Because the record instead reflects that 

Ushery would likely have pleaded guilty even without the court’s participation, the district court 

did not commit plain error. 

1. Standard of review

“We generally review unpreserved Rule 11 errors for plain error.” United States v. 

George, 573 F. App’x 465, 471 (6th Cir. 2014) (citing United States v. Davila, 133 S. Ct. 2139, 

2147 (2013) (Davila I)). Ushery admits that he did not object to the alleged Rule 11 violation 

below. To establish plain error, the burden is on the defendant to show (1) error that (2) was 

plain, (3) affected defendant’s substantial rights, and (4) seriously affected the fairness, integrity, 

or public reputation of the judicial proceedings. United States v. McCreary-Redd, 475 F.3d 718, 

721 (6th Cir. 2007) (citing United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)). 

Ushery, however, argues that “extraordinary circumstances” excuse his silence, such that 

the harmless-error standard under Rule 52(a) of the Federal Rules of Criminal Procedure should 

apply instead of the plain-error standard. Rule 52(a) provides that “[a]ny error, defect, 

irregularity, or variance that does not affect substantial rights must be disregarded.” Fed. 

R. Crim. P. 52(a). The government bears the burden of showing harmless error when Rule 52(a) 

applies, Davila I, 133 S. Ct. at 2147 (citing United States v. Vonn, 535 U.S. 55, 62 (2002)), 

which is why Ushery urges the application of Rule 52(a) rather than the plain-error standard.
No. 14-5046 United States v. Ushery Page 11

In Davila I (the case on which Ushery relies), the Supreme Court remanded the case to 

the Eleventh Circuit to decide whether the harmless-error or the plain-error standard of review 

applied to the defendant’s claim that the magistrate judge violated Rule 11(c)(1). Id. at 2150. 

The Eleventh Circuit subsequently held that the plain-error standard applied. United States v. 

Davila, 749 F.3d 982, 993 (11th Cir. 2014) (Davila II). 

Nevertheless, other circuits have suggested that an unobjected-to Rule 11(c)(1) violation 

may warrant a less exacting standard of review than plain error. See United States v. Kyle, 

734 F.3d 956, 962 (9th Cir. 2013) (“Some courts of appeal, including this circuit, have 

recognized that it may be inappropriate to penalize a defendant for his counsel’s failure to object 

to an error where such objection was either unlikely or futile.”); United States v. Nesgoda, 

559 F.3d 867, 869 n.1 (8th Cir. 2009) (declining to decide the issue on collateral review, but 

acknowledging that the defendant’s “policy arguments in support of a lesser standard of review 

are somewhat compelling”); United States v. Baker, 489 F.3d 366, 372-73 (D.C. Cir. 2007) 

(calling the proper standard of review a “close question” in light of “the virtual catch-22 

defendants are faced with when courts inject themselves into plea negotiations”); United States v. 

Cano-Varela, 497 F.3d 1122, 1132 (10th Cir. 2007) (expressing hesitance at “apply[ing] a 

heightened standard of review when defense counsel did not object to receiving the court’s 

help”). 

None of these courts actually reached the issue, but the Kyle, Baker, and Cano-Varela

courts all assumed without deciding that plain-error review applied because, in each case, the 

court found that the defendant’s proof met the plain-error standard. Kyle, 734 F.3d at 962-63; 

Baker, 489 F.3d at 373; Cano-Varela, 497 F.3d at 1132. Even the Davila II court acknowledged 

that “it may be inappropriate in certain circumstances to penalize a defendant for failing to object 

to judicial participations in plea negotiations.” 749 F.3d at 992. But in finding plain error to be 

the proper standard, the Eleventh Circuit noted that it had previously “applied the 

contemporaneous objection rule even in situations where counsel may not desire to object.” Id.

at 993. 

We find Ushery’s situation similar to that of the defendant in Davila II. In his appellate 

brief, Ushery claims that he did not have a meaningful chance to object during the August 14, 
No. 14-5046 United States v. Ushery Page 12

2013 rearraignment, and “[e]ven when [he] later did speak up, he was interrupted by his own 

defense counsel, and lectured by the district court about his hesitancy to plead guilty and having 

to make a ‘Hobson’s choice.’” But even if we were to assume that his counsel’s actions deprived 

him of a meaningful opportunity to object during the rearraignment, Ushery nevertheless “had 

ample occasion to object himself in the months following the [district judge’s] comments,” 

including at his December 17, 2013 sentencing hearing. See Davila II, 749 F.3d at 993. Ushery, 

however, did not object until the instant appeal. We therefore review his claim under the plainerror standard. 

2. We need not decide whether the district court’s conduct amounted to 

error that was plain, although it certainly violated best practices

Rule 11 absolutely prohibits judicial participation in plea negotiations: “An attorney for 

the government and the defendant’s attorney . . . may discuss and reach a plea agreement. The 

court must not participate in these discussions.” Fed. R. Crim. P. 11(c)(1). “Under Rule 11, the 

judge’s role is limited to acceptance or rejection of the plea agreement after a thorough review of 

the relevant factors; the judge should not participate in the plea bargaining process.” United 

States v. Harris, 635 F.2d 526, 528 (6th Cir. 1980). 

“The primary reason for Rule 11 is that a judge’s participation in plea negotiation is 

inherently coercive,” even if it is not intended to be. United States v. Barrett, 982 F.2d 193, 194 

(6th Cir. 1992), abrogated on other grounds by Davila I, 133 S. Ct. 2139 (2013). In finding that 

a Rule 11(c)(1) violation had occurred, the Eleventh Circuit recently explained that the district 

court’s participation in the plea-bargaining process is prohibited “because statements and 

suggestions by the judge are not just one more source of information to plea negotiators; they are 

indications of what the judge will accept, and one can only assume that they will quickly become 

the focal point of further discussions.” United States v. Harrell, 751 F.3d 1235, 1239 (11th Cir. 

2014) (internal quotation marks omitted). 

The comments at issue in the present case raise significant Rule 11 concerns. During the 

August 14, 2013 rearraignment, the district court oversaw a back-and-forth negotiation between 

the government’s attorney and Ushery’s counsel concerning specific provisions of a potential 

plea agreement. The government offered to strike the appeal-waiver provision from the proposal 
No. 14-5046 United States v. Ushery Page 13

after Ushery’s counsel raised the issue and the district court stated that Ushery need not waive 

his right to appeal. Only then did Ushery express an intent to plead guilty. 

The government also agreed to return Ushery’s baseball cards after the district court, on 

its own, raised the cards as an issue. During the forfeiture discussion, Ushery attempted to 

interject (“I don’t really know what’s going on because I don’t have no --”), but he was cut off 

by his own attorney. Moving along, the court asked if there was a writing that reflected the 

parties’ recent agreements. The government responded that it would cross out paragraphs 6 

(regarding forfeiture) and 8 (regarding appellate waiver) from the proposal, to which the court 

replied with apparent approval (and without waiting to hear from Ushery or his counsel): “All 

right. If you’d like to propose that, I’ll take a look at it.” 

Here, the district court did not simply accept the plea after it had been finalized. The 

court instead commented on a proposed plea that Ushery had not yet agreed to, and the specific 

items that the court raised became the focal points—indeed, the only points—of the continued 

negotiation. Even if the court did not go so far as to violate Rule 11(c)(1), it certainly violated 

best practices by allowing the government’s attorney and Ushery’s counsel to negotiate specific 

terms of a proposed plea agreement in its presence. The court could easily have asked the parties 

to step out of the courtroom or adjourned the rearraignment to a later date, rather than preside 

over what were clearly plea negotiations. 

What’s more, some of the district court’s comments might have suggested that it favored 

a plea agreement. The court could be seen as hinting at a preference simply by overseeing the 

discussions. See Barrett, 982 F.2d at 194 (“By intervening to facilitate a plea . . . , the judge 

communicated to the defendant that he desired a plea. He thereby raised the possibility, if only 

in the defendant’s mind, that a refusal to accept the judge’s preferred disposition would be 

punished.”). In addition, the court’s suggestion that Ushery faced a “Hobson’s choice, . . . where 

all your choices are bad,” could have led Ushery to believe that the court preferred for him to 

plead guilty. Such comments could be seen as compromising the court’s neutrality in assessing 

the voluntariness of the plea. See id. at 195. 

On the other hand, the district court may well have been acting with Ushery’s best 

interests in mind. “Nevertheless, there is no good motives exception to the bar on judicial 
No. 14-5046 United States v. Ushery Page 14

participation in plea discussions.” Harrell, 751 F.3d at 1240. Nor do the court’s repeated 

comments that the choice to plead guilty was Ushery’s and Ushery’s alone necessarily negate an 

error. See United States v. Cano-Varela, 497 F.3d 1122, 1134 (10th Cir. 2007) (rejecting the 

government’s argument that “the district court did not participate in the plea discussions because 

it repeatedly reminded [the defendant] that he had the choice to plead guilty or to go to trial” 

under circumstances where “the judge’s remarks [comparing a post-trial sentence to a post-plea 

sentence] tainted everything that followed”). 

Despite what appear to be good intentions on the part of the district court, some of the 

court’s comments during Ushery’s August 14, 2013 rearraignment raise legitimate Rule 11 

concerns. The court at the very least did not follow best practices when it allowed counsel to 

negotiate certain terms of a proposed plea agreement in its presence. At worst, the court violated 

Rule 11(c)(1) by directly participating in the plea negotiations. We need not decide whether the 

court committed error that was plain, however, because Ushery has failed to show that his 

substantial rights were affected, which is the third prong of the plain-error standard. 

3. Ushery has not shown any error that affected his substantial rights

To satisfy the plain-error standard of review, the error must affect Ushery’s substantial 

rights. See United States v. McCreary-Redd, 475 F.3d 718, 721 (6th Cir. 2007). Ushery, in other 

words, “must show a reasonable probability that, but for the error, he would not have entered the 

plea.” See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). To reverse, we must 

determine, based on the entire record, “that the probability of a different result is sufficient to 

undermine confidence in the outcome of the proceeding.” Id. (quoting Strickland v. Washington, 

466 U.S. 668, 694 (1984)) (internal quotation marks omitted). 

Even if we were to assume that there was a violation of Rule 11, Ushery has failed to 

show a reasonable probability that, but for the district court’s actions, he would have proceeded 

to trial. Two cases in which the Eleventh Circuit found a Rule 11 violation, but no prejudice, are 

instructive. In Davila II, the Eleventh Circuit listed five distinct factors suggesting that the 

defendant was not prejudiced, two of which overlapped with the court’s prior ruling in United 

States v. Castro, 736 F.3d 1308 (11th Cir. 2013): 
No. 14-5046 United States v. Ushery Page 15

Like the defendant in Castro, Davila (1) swore under oath during his change-ofplea hearing that his plea was not coerced and acknowledged that the Government 

could prove the conduct underlying his offense; and (2) later moved to withdraw 

his guilty plea but, in doing so, did not mention the improper comments and 

instead offered different reasons for doing so. . . . (3) Davila pled guilty three 

months after the Rule 11(c)(1) violation occurred, not—like the defendant in 

Castro—close on its heels; (4) the District Judge who approved Davila’s plea 

agreement and conducted the plea colloquy was not the judge who committed the 

Rule 11(c)(1) violation—unlike in Castro, where the judge who took the 

defendant’s plea was the same judge who made the improper remarks; and 

(5) Davila’s final plea agreement was significantly more favorable than the 

agreement the Government initially offered him. 

Davila II, 749 F.3d at 995-96. This list is not an exhaustive one, nor is any single factor 

dispositive, but an analysis of the factors is nonetheless helpful in assessing the prejudice, if any, 

that Ushery suffered. 

Three of the five factors weigh against finding that Ushery’s substantial rights were 

affected. Similar to the defendant in Davila II, Ushery admitted under oath that he had engaged 

in the conduct underlying his offense. The final plea agreement was also significantly more 

favorable to Ushery than the agreement that the government initially offered him, with the 

appellate-waiver and forfeiture clauses being deleted. Finally, unlike the defendant in Davila II, 

Ushery never moved to withdraw his guilty plea below. Ushery instead first raised the alleged 

Rule 11 violation nearly a year after he had pleaded guilty.

On the other hand, two of the five factors appear at first glance to weigh in favor of 

Ushery’s claim that he was prejudiced: Ushery pleaded guilty immediately after the purported 

Rule 11 violation, and the same judge who participated in the colloquy also took Ushery’s plea. 

The Supreme Court noted the government’s acknowledgement in Davila I that “if there is a 

serious Rule 11(c)(1) error, and the defendant pleads guilty right after that, the error would likely 

qualify as prejudicial.” Davila I, 133 S. Ct. at 2149 (internal quotation marks and alterations 

omitted). Further, “[i]n the vast majority of cases in which courts have found [that] a defendant 

was prejudiced by a Rule 11(c)(1) violation, the judge who made the improper comments was 

the same judge who took the plea.” Davila II, 749 F.3d at 998 (collecting cases). But the fact 

that the Eleventh Circuit did not find substantial prejudice in Castro even when these two factors 

were present indicates that they, too, are not dispositive. 
No. 14-5046 United States v. Ushery Page 16

Moreover, these two potentially negative factors are substantially neutralized in the 

present case. The fact that Ushery pleaded guilty at the end of the colloquy, for instance, is 

offset by the fact that he took no steps to withdraw his guilty plea between the August 14, 2013 

rearraignment and his sentencing hearing on December 17, 2013. For that matter, Ushery has 

never requested at any time to have his case tried on the merits. As for the same judge presiding 

over the plea negotiations and taking Ushery’s plea, the comments made by the judge here were 

not nearly as “improper” as they were in Castro, 736 F.3d at 1311 (“Do you understand that the 

government has made you a plea offer in which they have made certain concessions, that if you 

don’t plead today they may charge you with other things that will make your sentence even more 

severe?”), or in Davila II, 749 F.3d at 988 (where the magistrate judge urged the defendant to 

“go to the cross,” accept responsibility, and plead guilty because “there may not be a viable 

defense” to the charges). 

Further tipping the scales toward a finding of no prejudice is the fact that Ushery and his 

counsel stated on multiple occasions that Ushery did not want to go to trial. See Dominguez 

Benitez, 542 U.S. at 84-85 (“Relevant evidence [regarding the substantial-rights question] 

included [the defendant’s] statement to the District Court that he did not intend to go to trial, and 

his counsel’s confirmation of that representation, made at the same hearing.”). The statements in 

the instant case included Ushery telling his first counsel that “he was not going to trial” and that 

“he would have to plead,” his second counsel informing the court that Ushery “doesn’t want to 

go to trial,” Ushery commenting that “It’s obvious I’m going to lose the jury trial,” and Ushery 

explaining to the court that “I’ve been informing [the government] that I didn’t want to go to 

trial. . . . I’m trying to figure out a way to attack this career criminal [enhancement] without 

wasting nobody’s time.” 

Ushery might not have been ready to plead guilty at the beginning of the August 14, 2013 

rearraignment, but these statements show that Ushery never seriously considered proceeding to 

trial. Combined with the other Davila II factors, the statements of Ushery and his counsel negate 

any reasonable probability that, but for the district court’s involvement in the plea negotiations, 

he would not have pleaded guilty. We therefore conclude that Ushery’s substantial rights were 
No. 14-5046 United States v. Ushery Page 17

not adversely affected by the proceedings at the August 14, 2013 rearraignment. He has thus 

failed to satisfy the plain-error test. 

B. The district court’s pretrial teleconference with counsel did not violate Ushery’s 

right to be present at every critical stage of the proceedings 

Ushery also argues that the August 6, 2013 teleconference between the district court and 

counsel—but not Ushery—violated both his Fifth Amendment due process right to be present at 

every critical stage of the proceedings and his right under Rule 43 of the Federal Rules of 

Criminal Procedure to be present at every stage of trial. Because Ushery did not timely object to 

his absence at the August 6 teleconference, we review his claim under the plain-error standard. 

See United States v. Taylor, 489 F. App’x 34, 43 (6th Cir.), cert. denied, 133 S. Ct. 627 (2012) 

(reviewing the defendant’s challenge to being excluded from most pretrial hearings, sidebars, 

and a hearing on counsel’s conflict of interest under the plain-error standard because the 

defendant failed to contemporaneously object at trial). 

A defendant has “a due process right to be present at a proceeding ‘whenever his 

presence has a relation, reasonably substantial, to the fulness (sic) of his opportunity to defend 

against the charge.’” United States v. Gagnon, 470 U.S. 522, 526 (1985) (quoting Snyder v. 

Massachusetts, 291 U.S. 97, 105-06 (1934)). Rule 43, in turn, requires a defendant to be present 

at “(1) the initial appearance, the initial arraignment, and the plea; (2) every trial stage, including 

jury impanelment and the return of the verdict; and (3) sentencing.” Fed. R. Crim. P. 43(a). 

The purpose of the August 6, 2013 teleconference, as noted by the district court, was 

“primarily to determine how [to] proceed going forward.” During the short status conference, 

the district court and counsel moved the date of the trial and agreed to meet on August 14, 2013 

for a “tentative plea date” with Ushery present. The teleconference appears to have been “a 

brief, administrative conference” that did not have “significant consequences” for Ushery and 

therefore was not a critical stage of the proceedings. See Hereford v. Warren, 536 F.3d 523, 

529-30 (6th Cir. 2008) (finding that a short ex parte conference between the prosecutor and the 

judge during defendant’s trial was “a de minimis communication that was administrative in 

nature” and did not qualify as a critical stage of the proceedings). We agree with the 

government’s observation that, “[i]n fact, the upshot of the call was to afford Ushery the very 
No. 14-5046 United States v. Ushery Page 18

relief to which he now claims that he was entitled, namely, his presence during discussions 

concerning his decision whether to plead guilty.” 

Under these circumstances, Ushery did not have a right to be present at the August 6, 

2013 teleconference. We therefore conclude that the district court did not err in conducting the 

brief teleconference without Ushery. 

C. The district court’s 252-month sentence was substantively reasonable 

Finally, Ushery challenges the substantive reasonableness of his 252-month sentence, 

which is an upward variance of 17 months from the top end of the applicable Sentencing 

Guidelines range. We review a sentence for substantive reasonableness under the abuse-ofdiscretion standard. United States v. Zobel, 696 F.3d 558, 569 (6th Cir. 2012). The review 

“take[s] into account the totality of the circumstances, including the extent of any variance from 

the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). 

Although we may presume that sentences within the Guidelines are reasonable, we 

cannot presume that a sentence outside the Guidelines is unreasonable. Zobel, 696 F.3d at 569. 

For sentences outside the Guidelines range, we “may consider the extent of the deviation, but 

must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, 

justify the extent of the variance.” Gall, 552 U.S. at 51. The fact that we might have decided 

that a different sentence was more appropriate is not enough to justify reversal. Id.

Ushery claims in his brief that the district court abused its discretion by “bas[ing] its 

upward variance on Ushery’s offense conduct and his prior criminal history” because “[t]hese 

factors are already taken into account in the Guidelines.” Specifically, Ushery takes issue with 

the court considering “reckless endangerment during flight, obstruction, threatening the life of an 

officer, [and] presence of firearms” as aggravating factors when they were already captured by 

the sentencing enhancements (based on the same factors) that the court found to be applicable in 

Ushery’s case. 

The problem with Ushery’s argument is that these enhancements did not actually affect 

his Guidelines calculation. Because Ushery was found to be a career offender, his base offense 

level was determined solely by that fact. The district court stated during the sentencing hearing 
No. 14-5046 United States v. Ushery Page 19

that it would “rather rule on all of [the objections] to create a complete record,” but “with the 

caveat that if the Court finds the defendant to be a career offender under Chapter 4, the actual 

enhancements under Chapter 2 are not applicable as a matter of law.” There was thus nothing 

improper about the court considering these aggravating factors. 

In a similar vein, Ushery argues that his criminal history, recidivism, and the need for 

punishment—factors that the district court took into account—were already accounted for by the 

career-offender enhancement. But Ushery had far more than the two prior felony convictions 

required to establish career-offender status. See U.S.S.G. § 4B1.1(a). The district court noted 

that Ushery’s criminal history “is very significant,” involving “[m]ore than ten juvenile 

convictions [and] more than 20 adult convictions [that included] trafficking, robbery, escape, 

history of flight, [and] failure to complete probation.” By taking Ushery’s recidivism and the 

need for punishment into account, the court, far from abusing its discretion, was simply 

following § 3553(a)’s mandate that it consider “the need for the sentence imposed . . . to provide 

just punishment for the offense [and] to afford adequate deterrence to criminal conduct.” See 

18 U.S.C. § 3553(a)(2)(A)-(B). 

In sum, the record reflects that the district court gave reasoned consideration to the 

relevant sentencing factors. The court justified its upward variance as “necessary to reflect the 

seriousness of the offense and to provide just punishment as well as protect the public, given the 

fact that the defendant has been a menace to society practically his entire life.” It explained why 

it would not vary below the Guidelines, as Ushery requested, because such a sentence “would 

create a disparity among similarly situated defendants.” The court also considered Ushery’s 

upbringing, mental-health problems, and the small amount of drugs at issue in the instant 

offense. These are the same mitigating factors that Ushery points to in his appellate brief, but he 

does not argue—because he cannot—that the district court overlooked them. He simply 

disagrees with the district court’s conclusion. Because that is an insufficient basis to justify 

reversal on substantive-reasonableness grounds, we conclude that the district court did not abuse 

its discretion by imposing a sentence of 252 months of imprisonment. 

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court. 
No. 14-5046 United States v. Ushery Page 20

_________________ 

DISSENT

_________________ 

CLAY, Circuit Judge, dissenting. This case presents two questions, one of which is 

dispositive of the outcome, and both of which were wrongly decided by the majority. Because I 

conclude that the district judge’s participation in the plea negotiations, in violation of Rule 

11(c)(1), was far from harmless, I would vacate Ushery’s sentence and remand this case to the 

district court, where Ushery could enter a plea or, if he failed to do so, proceed to trial. 

The facts of this case represent an archetypical example of the dangerous and slippery 

slope faced by judges and defense counsel when they choose to ignore bright-line procedural 

safeguards in pursuit of what they surmise is the most just, equitable, or efficacious outcome in a 

particular case. Ushery was arraigned on May 16, 2013, and pleaded not guilty. His counsel 

moved for a rearraignment for the purpose of Ushery entering a guilty plea. Yet, instead of 

entering a guilty plea, Ushery expressed his displeasure with his counsel, pleaded not guilty, and 

asked for the appointment of a new attorney. The district judge granted Ushery’s request and 

reset the scheduled date of trial to a later date. Ushery’s new attorney also sought to schedule a 

rearraignment. The district judge called for a telephonic conference to schedule this 

rearraignment and, again, pushed back the date of trial because “continuing the trial in this case” 

was in the “best interest” of Ushery and of the public. (R. 19, Min. Ent.) He noted, “I looked 

through the criminal complaint, and the facts of the case are fairly straightforward, at least as 

alleged in the complaint.” (R. 60, Tel. Conf. Tr., p. 2). Defense counsel suggested that Ushery 

was not interested in a trial and if counsel was just given more time he could “resolve[]” 

Ushery’s continued “concern[] about signing” the plea agreement. (Id. at 6). The district judge 

thereafter queried defense counsel as to whether or not “it would help to have a hearing with 

[Ushery] to discuss [his pleading options].” (Id.) After defense counsel replied affirmatively, 

the district judge indicated that he would “set a tentative plea date for” August 14, 2013. (Id. at 

8). He also informed defense counsel that “[i]f [Ushery] does not plead guilty on that date, he 

may lose entitlement to the third point for acceptance of responsibility.” (R. 19, Min. Ent.) 
No. 14-5046 United States v. Ushery Page 21

Ushery did not attend the hearing on August 14, 2013 with the intention of pleading 

guilty. Nonetheless, the hearing began with the district judge informing Ushery that he had 

participated in a phone call with the prosecutor and defense counsel “to discuss the potential of 

having [Ushery] enter a plea of guilty.” (R. 61, Hr., p. 2). He continued by informing Ushery 

that he had reached the “drop-dead date” for pleading guilty if Ushery still wished to receive all 

credit for acceptance of responsibility when it came to determining Ushery’s sentence. (Id.) 

Defense counsel expressed his frustration, noting that he had discussed the plea with Ushery, but 

that Ushery had “issues that [defense counsel] [did not] necessarily agree with.” (Id. at 3). 

Defense counsel noted that it was not his intent to “prejudice Mr. Ushery,” his client, but that 

both he and the prosecutor thought that one final conversation in the presence of the district 

judge might be helpful. (Id.) During this conversation Ushery noted that he felt like he was 

“being muscled in[to] taking this time.” (Id. at 4). The district judge explained to Ushery that it 

was his decision alone to make, that he was not wasting the court’s time, and that if he wished to 

go to trial he could. But after some time, the conversation refocused on the consequences to 

Ushery if he did not plead guilty at that very hearing. 

The district judge noted that “today is the last date that I’m going to permit you to plead 

guilty if you want to plead guilty and receive that third point for acceptance of responsibility.” 

(Id. at 7). It was at this point that the negotiations began, with the prosecutor interjecting that he 

was willing to drop the appellate-waiver provision from the plea deal if that was the “holdup” for 

Ushery pleading guilty. (Id.) The district judge assented to the proposal; defense counsel 

conferred with Ushery off the record, and then affirmed that it was Ushery’s intent to plead 

guilty. 

The next topic up for discussion was forfeiture. After discussing whether or not 

forfeiture of Ushery’s baseball cards was on the table, the district judge asked the prosecutor for 

his thoughts, and the prosecutor again agreed to modify the proposed terms to satisfy Ushery 

with respect to forfeiture, if he would only plead guilty. Defense counsel continued to negotiate 

terms by ensuring that he could still litigate whether money that had been seized from Ushery 

was subject to forfeiture. Ushery interjected, “I don’t know really what’s going on because I 
No. 14-5046 United States v. Ushery Page 22

don’t have no—,” but defense counsel cut him off to say “I think things are in order, Your 

Honor,” and the negotiations concluded. (Id. at 9). 

Immediately following this exchange, without inquiring into the basis for Ushery’s 

confusion, the district judge asked whether the prosecutor had a written plea agreement that 

reflected the present understanding of the deal, save for the fact that the appellate-waiver 

provision and forfeiture of the baseball cards would need to be stricken. He next informed 

Ushery that he would be sworn-in to plead guilty while the prosecutor was “initialing” the 

changes being made to the proposed agreement. After Ushery was sworn in, he reiterated that he 

“really [didn’t] feel like” he had been given “enough time to talk to” his attorney about his 

pleading options. (Id. at 10). The district judge asked rhetorically whether “more time [would] 

make it easier for [Ushery] or more difficult?” (Id. at 11). He reaffirmed that Ushery would not 

be muscled into taking a deal, but followed up that assurance by telling Ushery that he might be 

facing a “Hobson’s choice . . . where all of [his] choices [were] bad.” (Id.) The district judge 

again asked whether Ushery had been given enough time. This time, Ushery relented by saying, 

“yes, sir.” (Id.) 

Ushery was mostly compliant for the remainder of the hearing: as his rights were being 

communicated to him in pro forma fashion; as the sentencing procedure was explicated; and as 

he was being told that he would be unable to withdraw his plea after it was entered. There was, 

however, one other extended dialogue about Ushery’s right to appeal his sentence. Ushery 

indicated that he still believed that his case had been “mishandled,” partly because he could not 

comprehend how he went from being prosecuted in a state court to being subject to federal 

prosecution that would include a career offender enhancement as a part of his sentence. (Id. at 

37). After receiving additional assurances from the district judge that he could appeal his 

sentence, but not the conviction or pleading decision, Ushery again reluctantly consented and 

pleaded guilty. 

The outcome reached by the majority is not fairly supported by these facts, and is based 

on a misunderstanding of the law with respect to what constitutes prejudice to a substantial right. 

But before that issue is addressed, the first question presented by Ushery’s case is, who should 

bear the burden of proof when this Court reviews a sentencing appeal in the context of a Rule 
No. 14-5046 United States v. Ushery Page 23

11(c)(1) violation. In my view, it is plain that the burden must rest with the government because 

requiring a contemporaneous objection by a defendant under these circumstances is completely 

unworkable, when, as a practical matter, there is no one to object on the defendant’s behalf when 

his counsel has abdicated his responsibility to his client and is also involved in the violative 

activity. 

I. Standard of Review 

Rule 11 sentencing errors will not be reversed so long as they are harmless, but that does 

not mean that the burden of proof is unimportant and that this Court should impose a plain error 

standard. As noted by the majority opinion, four of our sister circuits have remarked favorably 

on the persuasive arguments in support of applying harmless error review in the context of a 

Rule 11(c)(1) violation. See United States v. Kyle, 734 F.3d 956, 962 (9th Cir. 2013); United 

States v. Nesgoda, 559 F.3d 867 n.1 (8th Cir. 2009); States v. Baker, 489 F.3d 366, 373 (D.C. 

Cir. 2007); United States v. Cano-Varela, 497 F.3d 1122, 1132 (10th Cir. 2007).1

 However, 

instead of engaging with a difficult issue, the majority has blindly followed the Eleventh 

Circuit’s holding in United States v. Davila, 749 F.3d 892 (11th Cir. 2014) (“Davila II”). In 

doing so, a new precedent has been set without thoughtful consideration of the reality faced by a 

defendant who has just witnessed his attorney, the prosecutor, and the district judge presiding 

over his case, all working in tandem against him toward one goal—coercing the defendant into 

accepting a particular plea agreement. 

The majority’s holding suggests that a defendant confronted by such a situation should on 

his own accord stand up and say, “I object.” The sheer improbability of this hypothetical 

objection will ensure that all Rule 11(c)(1) violations are subject only to plain error review, 

requiring the defendant to prove that his substantial rights were affected. This, in turn, may 

invite prosecutors, defense counsel, and the district courts, to employ unduly coercive 

negotiation tactics when faced with a criminal defendant who refuses to plead, or is reluctant to 

 1

The Supreme Court in United States v. Davila (“Davila I”), albeit implicitly, also recognized some merit 

in considering the harmless error standard. See 133 S. Ct. 2139, 2150 (2013) (“[W]e leave [the standard of review] 

issue[] to be addressed by the Court of Appeals on remand.”). 
No. 14-5046 United States v. Ushery Page 24

plead—especially when the defendant is being told that he is being offered a favorable plea deal 

and that the likelihood of conviction, were he to proceed to trial, is overwhelming. 

There is simply no good reason for this Court to follow the holding of Davila II. 

Regardless of the similarities or lack thereof between this case and Davila,

2

 I remain 

unpersuaded by the argument offered in that opinion in support of applying the plain error 

standard. In Davila II, the court reasoned that plain error review was appropriate simply because 

it had previously required a contemporaneous objection “in [a] situation[] where counsel may not 

desire to object.” 749 F.3d at 993 (citing United States v. Rodriguez, 627 F.3d 1372 (11th Cir. 

2010)). The prior incident, to which the court was referring, is inapposite. In Rodriguez, the 

defendant argued that no objection was required to preserve a claim for judicial bias because an 

attorney might reasonably fear that his client would receive a less favorable sentence after having 

accused the judge of bias. 627 F.3d at 1377. The court rejected this argument—reasoning, in 

part, that judges are not so petty as to warrant the concern that defendants will receive vindictive 

sentences, and attorneys are not so spineless that they would fail to make a valid objection when 

one is required. Id. at 1380. This reasoning has no application in the context of a Rule 11(c)(1) 

violation. Ushery’s counsel failed to object in this case, not because he was too timid and fearful 

of angering the district judge, but because he was an active participant in the violation. 

Presumably, no attorney would object to his own actions; especially when the attorney is 

winning concessions that might induce his client to accept what the attorney believes to be a 

favorable plea or, at least, what the attorney believes to be the best possible outcome under the 

circumstances. 

The majority suggests that whether or not the attorney might object is irrelevant because 

“Ushery . . . ‘had ample occasion to object himself in the months following [the district judge’s] 

comments.’” Maj. Op. at 12 (quoting Davila II, 749 F.3d at 993). In this instance, however, the 

passage of time is insignificant. It seems to me all too unlikely that defense counsel, after having 

 2

The majority contends that the defendants are similarly situated, but they are not. For example, Davila 

entered into a plea agreement, and repeatedly affirmed that he was accepting the agreement absent any “pressure, 

threats, or promises,” months after the magistrate judge (not responsible for sentencing Davila) committed the Rule 

11 violation, whereas Ushery repeatedly resisted accepting this particular plea agreement and only consented after 

the sentencing judge strongly suggested to him that he had no better options to choose from. The only apparent 

similarity between Ushery and Davila is the weakness of their bargaining positions due to the strength of the 

unfavorable evidence to be presented in their respective cases. 
No. 14-5046 United States v. Ushery Page 25

participated in the impermissible negotiations, would advise Ushery that the district judge’s 

actions at the hearing were objectionable. Furthermore, there is no reason to expect that Ushery 

would object without his counsel’s advice. It is well understood that the Rule 11(c)(1) 

prohibition exists simply because defendants can easily be overborn by the formidible authority 

wielded by a district judge. See, e.g., Cano-Varela, 497 F.3d at 1132 (noting that the purpose 

behind the Rule is to “avoid the possibility that comments by the district court might coerce the 

defendant into accepting a plea negotiated by defense counsel”). Ushery was explicitly told by 

the district judge that once he pleaded guilty he would be unable to withdraw his plea. To expect 

that a lay person, under these circumstances, would intuitively understand that his rights had 

been violated and that he could thereafter object on that basis, after any length of time, is entirely 

unreasonable. 

Because there is no legitimate expectation that a contemporaneous objection is likely to 

ever be made to a Rule 11(c)(1) violation under these circumstances, the plain error standard 

should not apply and the government should bear the burden of proof in applying the harmless 

error standard. 

II. Plain Error and Substantial Right 

Even if the plain error standard were appropriate, Ushery’s plea should still be vacated. 

I agree with the majority that the district judge’s actions in this case “raise[d] legitimate Rule 11 

concerns.” Maj. Op at 14. In fact, I have no doubt that a violation occurred, because “[u]nder 

Rule 11, the judge’s role is limited to acceptance or rejection of the plea agreement . . . .” United 

States v. Harris, 635 F.2d 526, 528 (6th Cir. 1980). Once the judge has gone beyond that role, as 

the district judge did in this case, the rule has been violated. 

To avoid offering Ushery any relief, the majority found that his substantial rights were 

not affected. This contention is plainly wrong. Ushery only needed to demonstrate “a 

reasonable probability that, but for the error, he would not have entered the plea.” United States 

v. Dominguez Benitz, 542 U.S. 74, 83 (2004). He did that, even by the majority’s own 

recounting of the facts. This conclusion is unsurprising, as most instances of Rule 11(c)(1) 

violations impact a defendant’s substantial rights. United States v. Bradley, 455 F.3d 453, 463 

(4th Cir. 2006) (“[I]t will be rare that a clear violation of Rule 11’s prohibition against judicial 
No. 14-5046 United States v. Ushery Page 26

involvement in plea negotiations does not affect substantial rights.”). However, relying on no 

case law whatsoever, the majority has required Ushery to show that “but for the district court’s 

actions, he would have proceeded to trial.” Maj. Op. at 14. This incorrect recitation of the law is 

no more than a naked attempt to unfairly encumber defendants with a more difficult burden on 

plain error review. 

When analyzed using the correct legal standard, the facts of this case clearly support a 

finding that Ushery’s substantial rights were affected. Ushery had twice pleaded not guilty and 

refused to accept the government’s plea offer by the time that this third hearing, the 

rearraignment, had occurred. The hearing itself was agreed to by district judge explicitly for the 

purpose of “discuss[ing] the potential of . . . [Ushery] enter[ing] a plea of guilty.” (R. 61, Hr., p. 

2). Resetting the trial date, the district judge reasoned, was in Ushery’s “best interest;” after all, 

defense counsel had just announced, with respect to the guilty plea, that he could “get it 

resolved.” (R. 19, Min. Ent.); (R. 60, Tel. Conf. Tr., p. 6). Defense counsel, however, did not 

get it resolved. The date of the hearing arrived, and Ushery was still not prepared to consent to 

the government’s proposed plea agreement. That was Ushery’s response even after the district 

judge had informed him that he had reached the “drop-dead date” for pleading guilty. (R. 61, 

Hr., p. 2). Ushery indicated that he felt pressured, but the district judge again, later in the 

proceedings, reminded him that “today is the last date that I am going to permit you to plead 

guilty if you want to . . . receive that third point for acceptance of responsibility.” (Id. at 7). It 

was not until after the impermissible negotiations took place that Ushery finally indicated some 

openness to accepting the proposed plea agreement. But when the plea agreement was 

purportedly finalized, Ushery again expressed his reluctance to pleading guilty. Instead of 

accepting the agreement, he suggested that he had not had enough time to discuss his pleading 

options with his new attorney and that he remained uncomfortable with the agreement, given the 

length of the proposed sentence. The district judge responded, first by asking rhetorically 

whether additional time would be more or less helpful to Ushery, and then by explaining to 

Ushery the nature of his Hobson’s choice. With no meaningful support or assistance even from 

his own attorney, it was only at this point that Ushery consented to the government’s proposed 

plea agreement. Notably, the agreement was only slightly different from the one he had flat out 

rejected at the beginning of the proceedings. There is no fair reading of these facts that suggests 
No. 14-5046 United States v. Ushery Page 27

Ushery would have accepted this plea absent the district judge’s participation in the plea 

negotiations. 

“Rule 11(c)(1) was adopted as a prophylactic measure.” Davila I, 133 S. Ct. at 2149. It 

establishes a “bright line rule,” United States v. Pena, 720 F.3d 561 (5th Cir. 2013), and whether 

the judge’s participation is aimed at helping the defendant is entirely irrelevant. United States v. 

Harrell, 751 F.3d 1235, 1239 (11th Cir. 2014). Under no circumstances may the court suggest 

terms to be negotiated or serve as the mediator in the course of negotiations, as was the case 

here. The district court had two options in this situation: to either accept or reject an agreement 

that the parties had entered into or to permit the case to proceed to trial. If the parties failed to 

enter into an agreement, a trial would appropriately ensue. Whether a trial was in Ushery’s best 

interest is not a subject for appellate review under these circumstances. Dominguez Benitez, 

542 U.S. at 85 (“[I]f it is reasonably probable he would have gone to trial absent the error, it is 

no matter that the choice may have been foolish.”). The role of this Court is to judge whether 

there is a reasonable probability that Ushery would not have accepted the plea when he did but 

for the judicial interference. The record, even as laid out in the majority opinion, clearly 

indicates that Ushery would not have entered into the plea agreement, absent the Rule 11 

violation. Therefore, the guilty plea and sentence should be vacated and the case remanded to 

the district court where Ushery can either enter a plea, absent judicial interference, or proceed to 

trial.