United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2019 Decided March 19, 2019 

No. 18-3007 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

CHARLES LEE SMOOT, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:17-cr-00137-1) 

Dennis M. Hart, appointed by the court, argued the cause 

and filed the brief for appellant. 

Daniel J. Lenerz, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Jessie K. Liu, 

U.S. Attorney, and Elizabeth Trosman and Suzanne Grealy 

Curt, Assistant U.S. Attorneys. 

Before: SRINIVASAN, Circuit Judge, and EDWARDS and 

RANDOLPH, Senior Circuit Judges. 

 Opinion for the Court filed by Senior Circuit Judge

EDWARDS. 

 
2 

 EDWARDS, Senior Circuit Judge: On September 20, 

2017, Appellant, Charles Smoot, pled guilty to one count of 

bank robbery in violation of 18 U.S.C. § 2113(a). He was 

subsequently sentenced to 96 months of incarceration. He now 

appeals to overturn his conviction and sentence. 

In support of his appeal, Appellant raises three claims of 

ineffective assistance of counsel. He contends, first, that his

counsel was inadequately prepared for trial, second, that his 

counsel failed to object to an erroneous finding allegedly made

by the District Court during sentencing and, third, that a 

conflict of interest existed between him and his counsel. 

Appellant’s first claim of ineffective assistance of counsel fails 

because, even assuming that counsel was inadequately 

prepared, Appellant has failed to show that this caused him to 

plead guilty. Appellant’s second claim fails because it is based 

on a mischaracterization of the record. Appellant asserts that 

the District Court erroneously found, at sentencing, that 

Appellant possessed a gun during the robbery, and that counsel 

for Appellant should have objected to that finding. The record 

is clear, however, that the District Court made no such finding

and, therefore, counsel could not have been ineffective for 

failing to object. Appellant’s third claim fails because he has

not even alleged that the purported conflict of interest actually 

affected his counsel’s performance. 

 Appellant also argues that his plea agreement is invalid 

because the District Court impermissibly participated in plea 

bargaining in violation of Rule 11 of the Federal Rules of 

Criminal Procedure (“Rule 11”). However, we find no merit in 

this claim because the record establishes that the trial judge did 

not attempt to influence or coerce Appellant into taking a plea, 

nor did the judge otherwise inappropriately participate in plea

bargaining. 
3 

 Because Appellant has failed to show that he was 

prejudiced by his counsel’s performance and, further, because 

the record shows that the District Court did not inappropriately 

participate in plea bargaining, we affirm. 

I. BACKGROUND

 On July 5, 2017, at 9:45 a.m., the TD Bank on Rhode 

Island Avenue in Washington, D.C., was robbed by a man 

wearing a hat with a skull on it, sunglasses, jeans with frayed

cuffs and an insignia, a large black watch with a white border,

and light gray shoes with white soles. The robber was also 

carrying a magazine and a black bag with an Under Armour 

logo on it. The robber passed demand notes to two tellers, and 

he said something along the lines of “Give me all your money 

or I’ll kill everyone in here.” The tellers gave him 

approximately $5,000. The money that was handed over by the 

tellers included GPS trackers. The robber did not brandish a 

weapon, but he did keep one hand concealed in the bag 

throughout the robbery. The robbery was captured on high 

definition surveillance cameras from several angles in the 

bank. 

 Shortly after the robbery, the police began tracking the 

money using data coming from the GPS devices. The two 

tracking devices appeared together for a period of time before 

separating near 62nd Street N.E. Officers found one tracking 

device along with some of the money in a black plastic bag near

308 63rd Street N.E. Data from the second tracking device led 

them to a residence at 405 60th Street N.E. They began 

surveilling the house and saw a man later identified as 

Appellant. His clothing did not match the clothes seen on the 

robber, but he was wearing a watch and sneakers that appeared 

to be the same as those worn by the robber. The officers 

observed Appellant holding what appeared to be a large wad of 
4 

currency. They also saw a different individual put a GPS 

tracking device in a storm drain in front of the house, where it 

was later found. Appellant then drove away from the house. 

The officers attempted to conduct a traffic stop to detain 

Appellant, but he fled. 

 Officers then obtained a warrant to search 405 60th Street 

N.E., a residence where approximately a dozen individuals, 

including Appellant, were living at the time. During the search, 

officers found, on a washing machine in the house, the pants 

with the frayed hem and emblem that the bank robber wore. 

The officers also found a bag that looked like the Under 

Armour duffel bag carried by the robber. Another resident of 

the house told the officers that the bag belonged to “Chuck,” or 

Charles Smoot. That resident also informed officers that 

Appellant had been in the house that morning, left for a period

of time, and then returned to the house. She told officers that

Appellant was wearing a hat with a skull on it, like the hat worn 

by the bank robber. 

 Appellant was arrested two days later. At the time of his 

arrest, he was wearing gray sneakers with white soles like those 

worn by the bank robber. He was also wearing a large black 

watch with a white border, like the watch worn by the robber. 

A DNA examiner concluded that Appellant’s DNA was on the 

Under Armour bag found at 405 60th Street N.E. A 

handwriting expert who analyzed the demand notes at the bank 

concluded that they were likely written by Appellant. 

Appellant’s fingerprints were found on the magazine carried by 

the robber, which had been left behind in the bank. In addition, 

a witness who knows Appellant identified him as the robber 

based on stills from the bank surveillance cameras. 

 On July 11, 2017, Appellant was indicted by a grand jury 

on one count of bank robbery, in violation of 18 U.S.C. 
5 

§ 2113(a). The next day, Appellant appeared before a 

magistrate judge and requested that the judge replace his 

counsel, a federal public defender. That request was granted 

and, on July 13, a new attorney entered an appearance to 

represent Appellant. 

 The parties appeared before the District Court on several 

occasions during the pendency of the case. During one pretrial 

hearing, which took place on September 1, it came to light that

defense counsel may not have communicated the details of a 

then-expired plea offer to Appellant. In light of this revelation, 

the Government re-extended the plea offer to Appellant. When 

Appellant indicated that he was going to reject the offer, the 

Government asked the District Court to explain the details of 

the plea offer to Appellant on the record to ensure that 

Appellant understood the offer and was knowingly and 

voluntarily rejecting it. The District Court then explained the

offer and answered Appellant’s questions about it. At the 

conclusion of the hearing, Appellant rejected the plea offer. 

 On September 15, the parties appeared again before the 

District Court. Among other matters, the parties discussed a 

pro se motion for substitute counsel filed by Appellant, which 

motion the District Court denied. 

 Shortly thereafter, Appellant accepted an offer identical to 

the offer he had rejected on September 1. On September 20, 

Appellant entered a guilty plea before the District Court. The 

plea agreement provided that the Government would “cap its 

allocution at the low end of the Guidelines,” which it estimated 

to be 63 to 78 months. Supplemental Appendix 201–02. The 

agreement further provided that Appellant would waive certain 

rights, including his right to appeal, 
6 

except to the extent the Court sentences [Appellant] 

above the statutory maximum or guidelines range 

determined by the Court or [Appellant] claims that [he] 

received ineffective assistance of counsel, in which case 

[Appellant will] have the right to appeal the illegal 

sentence or above-guidelines sentence or raise on appeal 

a claim of ineffective assistance of counsel, but not to 

raise on appeal other issues regarding the sentencing. . . . 

Realizing the uncertainty in estimating what sentence the 

Court ultimately will impose, [Appellant] knowingly and 

willingly waives [his] right to appeal the sentence, to the 

extent noted above, in exchange for the concessions 

made by the Government in this Agreement. 

Id. at 204. 

 The District Court sentenced Appellant on January 19, 

2018. First, the court calculated Appellant’s Federal 

Sentencing Guidelines (“Guidelines”) range. The court gave 

Appellant the benefit of a three-point reduction for acceptance

of responsibility because he pled guilty. The court then 

concluded that Appellant’s Guidelines range was 77 to 96 

months, an increase from the parties’ calculation based on a 

two-point enhancement for making a death threat during the 

offense. See USSG § 2B3.1(b)(2)(F). Although the 

Government honored its agreement to recommend 63 months 

of incarceration, the District Court sentenced Appellant at the

top of the Guidelines range: 96 months of incarceration, 36 

months of supervised release, and a $100 special assessment. 

After detailing Appellant’s extensive criminal history, which 

included eighteen prior convictions, including seven 

convictions for gun crimes, the District Court explained its 

sentence as follows: 
7 

[T]he reason, Mr. Smoot, is not that you haven’t taken 

responsibility . . . . It’s because of what you did and what 

you have done in your past. And the bottom line is, 

sometimes judges need to take a step back and ask 

themselves, what is in the best interest of the community 

to protect people, and this is one of those cases. . . . [A 

longer sentence is] an additional period of time that you 

are not in the community, it’s an additional period of 

time that [you] are not putting people at risk. 

Appendix (“A.”) 338. 

 Appellant then filed a timely appeal with this court. 

II. ANALYSIS

A. Ineffective Assistance of Counsel 

 Appellant presses three claims of ineffective assistance of 

counsel. First, he asserts that his counsel was inadequately 

prepared for trial. Second, he contends that his counsel failed

to object to an erroneous, prejudicial finding by the District 

Court during sentencing. Third, he alleges that a conflict of 

interest existed between him and his counsel. 

 A defendant claiming ineffective assistance of counsel 

must “show two things: (1) that counsel’s performance was 

deficient, and (2) that the deficient performance prejudiced the 

defense.” In re Sealed Case, 901 F.3d 397, 404 (D.C. Cir. 

2018) (quoting United States v. Anderson, 632 F.3d 1264, 1268 

(D.C. Cir. 2011)). When an ineffective assistance of counsel 

claim is raised on direct appeal, this court generally remands 

the case to allow the district court to develop a factual record 

and address the merits of the claim in the first instance. We 

decline to remand only if “the record alone conclusively shows 
8 

that the defendant either is or is not entitled to relief.” Id.

(quoting United States v. Bell, 708 F.3d 223, 225 (D.C. Cir. 

2013)). 

 Appellant’s first claim – that counsel was inadequately 

prepared for trial – fails because he has not shown that “there

is a reasonable probability that, but for counsel’s errors, he 

would not have pleaded guilty and would have insisted on 

going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The 

evidence against Appellant was overwhelming, including: high 

definition surveillance footage from the bank; forensic DNA, 

fingerprint, and handwriting evidence; physical evidence taken 

from a house where Appellant was residing; and statements 

from a witness who identified Appellant as the person in the 

surveillance video. GPS trackers led police officers to a 

residence where Appellant was staying. Appellant was there 

when the officers arrived, he was seen with what appeared to 

be a large wad of currency, and he fled when the police officers 

attempted to detain him. When he was eventually arrested, he 

was wearing a watch and shoes that matched those worn by the 

robber at the bank. 

 In addition, if Appellant had gone to trial, he would have 

lost the benefit of the offense level reduction for acceptance of 

responsibility. The three-point reduction lowered his 

Guidelines range from 100 to 125 months to 77 to 96 months. 

See USSG § 5A. Given the overwhelming evidence against him 

and the “somewhat favorable” terms of the plea agreement, 

Appellant has failed to show a reasonable probability that, had

counsel been better prepared, he would not have pled guilty and

would have insisted on going to trial. United States v. Hunt, 

560 F. App’x 2, 3–4 (D.C. Cir. 2014). 

 Appellant’s second ineffectiveness claim is based on an 

alleged finding made by the District Court during sentencing 
9 

that Appellant used a gun during the robbery. Appellant asserts

that his counsel was ineffective for failing to object to this 

finding. This claim fails, however, because the District Court 

made no such finding. To the contrary, the District Court did 

not apply any of the gun enhancements in his Guidelines 

computation. And during the sentencing hearing, the District 

Court repeatedly said that no one knew whether Appellant was 

armed during the robbery. In short, counsel could not have been

ineffective for failing to object to a finding that Appellant was 

armed during the robbery because that finding was never made. 

 Although it is not entirely clear from his briefing, 

Appellant appears to raise a third claim of ineffective 

assistance of counsel based on an alleged conflict of interest 

with his trial counsel. Conflict of interest claims “are a ‘specific 

genre’ of ineffective assistance of counsel claim.” United 

States v. Wright, 745 F.3d 1231, 1233 (D.C. Cir. 2014) 

(quoting United States v. Bruce, 89 F.3d 886, 893 (D.C. Cir. 

1996)). “[I]f a defendant can show that ‘a conflict of interest

actually affected the adequacy of [the attorney’s] 

representation,’ he ‘need not demonstrate prejudice in order to

obtain relief.’” United States v. Gray-Burriss, 791 F.3d 50, 62 

(D.C. Cir. 2015) (alteration in original) (quoting Cuyler v. 

Sullivan, 446 U.S. 335, 349–50 (1980)). Here, Appellant has 

failed to even allege that a conflict of interest “actually 

affected” his counsel’s performance. Id. at 62–63 (“When a 

defendant claims a conflict between himself and his attorney, 

he must show that the attorney was ‘forced to make a choice 

advancing his own interest at the expense of his client’s.’” 

(quoting United States v. Taylor, 139 F.3d 924, 930 (D.C. Cir. 

1998))). Therefore, to the extent that Appellant is arguing a 

third claim of ineffective assistance based on a conflict of 

interest, that claim also fails. 
10 

 Relatedly, Appellant asserts that the District Court erred 

by failing to adequately inquire into the alleged conflict of 

interest and by failing to grant Appellant’s motion for 

substitute counsel. When an indigent defendant seeks 

appointment of substitute counsel, a district court is generally 

obligated to “engage the defendant in a colloquy concerning 

the cause of the defendant’s dissatisfaction with his 

representation.” United States v. Graham, 91 F.3d 213, 221 

(D.C. Cir. 1996). A defendant challenging the denial of a 

motion to substitute counsel must show that he was not 

“afforded effective representation” in order to show that denial 

of the motion was prejudicial. Id. (quoting United States v. 

Zillges, 978 F.2d 369, 372 (7th Cir. 1992)). As noted above, 

the record conclusively shows that Appellant was not 

prejudiced by his counsel’s performance. Therefore, 

Appellant’s claims the District Court should have inquired 

more deeply into his counsel’s performance and should have 

granted his motion for substitute counsel also fail. See id. at 

222 (“[Appellant’s] claim to substitute counsel must fall with 

his claims to have received ineffective assistance from his 

court-appointed lawyer.”). 

B. Judicial Participation in Plea Negotiations 

 Appellant also asserts that the District Court 

impermissibly participated in plea negotiations in violation of

Rule 11. See Fed. R. Crim. P. 11(c)(1) (“The court must not 

participate in [plea] discussions.”). This court has held that a 

trial judge may violate Rule 11 “even in cases where the district 

judge technically did not participate in discussions with a view 

toward a plea agreement.” United States v. Baker, 489 F.3d 

366, 371 (D.C. Cir. 2007) (quoting United States v. Cannady, 

283 F.3d 641, 644 (4th Cir. 2002)). 
11 

 Because Appellant did not object to the Rule 11 violation 

at the time when it allegedly occurred, he cannot succeed on 

this claim unless we find plain error. See United States v. 

Davila, 569 U.S. 597, 608 (2013); see also id. at 608–11 

(rejecting the argument that judicial participation in plea 

bargaining claims under Rule 11 should be treated differently 

than other Rule 11 claims). “[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.” Id. at 608 (alteration in original) 

(quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 

(2004)). 

 Appellant has failed to show plain error. To the contrary, 

the record is clear that the District Court did not violate Rule 

11. During the hearing in question, the District Court merely 

explained the terms of the Government’s plea offer and 

answered Appellant’s questions about the offer. None of the 

District Court’s statements during that hearing could 

reasonably be viewed as an attempt to influence or coerce 

Appellant, nor did these statements otherwise constitute 

impermissible participation in the plea negotiation. 

 Appellant argues that the District Court attempted to 

convince him to take the plea offer by going “further than just

an observation when it actually argued with the appellant about

the favorability of the plea terms.” Appellant’s Br. 44. But the 

transcript from the September 1 hearing does not support this 

claim. Rather, what the record shows is that the District Court

accurately characterized the offer as “a slightly more favorable 

plea offer” – as a result of the removal of a mandatory forfeiture 

provision – than the Government’s prior offer. A. 119. The 

District Court’s characterization of the pending offer as 

“slightly more favorable” was a description, not an 
12 

endorsement. And the trial judge never said anything to press 

Appellant to accept the plea offer. Indeed, Appellant rejected 

the offer after the trial judge explained it. In these 

circumstances, we reject the suggestion that the District Court

impermissibly participated in plea bargaining. 

 Appellant also argues that the District Court “entered into 

the plea negotiations by describing the government intentions 

and predicting what the government wished to offer and what 

it would not offer in further negotiations.” Appellant’s Br. 44. 

Without question, certain predictions by a trial judge – for 

example, that the Government will not make a better offer, or 

that a defendant will receive a higher sentence if convicted 

following trial – might be viewed as coercive. See, e.g., Baker, 

489 F.3d at 374. However, in this case, the statement that 

Appellant characterizes as a “predict[ion]” was merely a 

restatement by the District Court of the Government’s position 

that it would not offer the kind of global plea agreement that 

Appellant had requested. See A. 129 (“That’s your answer, Mr. 

Smoot, that the government is not prepared to do any more than 

it’s offered to you today.”). Such a statement does not 

constitute improper judicial participation in plea bargaining. 

 Furthermore, in order to establish plain error, Appellant 

must show that he was prejudiced by the District Court’s 

statements. As noted above, Appellant rejected the plea offer 

during the September 1, 2017, hearing, and then accepted the 

proposed deal more than two weeks later. Appellant does not 

claim that he accepted the plea because of anything said or done 

by the trial judge. And there is nothing in the record to indicate 

that Appellant was in any way coerced by the District Court. 

He acted of his own volition when he accepted the plea deal. 

Therefore, we find no prejudice to Appellant’s decision to 

plead guilty. See Davila, 569 U.S. at 601. 
13 

C. Abuse of Discretion at Sentencing 

 Appellant also argues that the District Court abused its 

discretion at sentencing by relying on Appellant’s prior 

weapons convictions in crafting the sentence. However, this 

claim is covered by the appeal waiver in Appellant’s plea 

agreement. It is well settled that such waivers are enforceable

“if the defendant has the requisite awareness and understanding

of ‘the risks involved in his decision.’” In re Sealed Case, 901 

F.3d at 400 (quoting United States v. Guillen, 561 F.3d 527, 

529 (D.C. Cir. 2009)). Appellant has not argued that he lacked 

the requisite understanding of the risks involved, nor has he 

otherwise challenged the validity of his appeal waiver. 

Therefore, Appellant waived his right to raise this claim on 

appeal. 

III. CONCLUSION

 For the reasons stated herein, the conviction and sentence 

are affirmed. 

 So ordered.