FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 11, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-13799

Non-Argument Calendar

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D. C. Docket No. 06-80012-CR-KLR

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DOMINIQUE SHULER, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 11, 2007)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:

Dominique Shuler appeals his convictions for possession with intent to
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distribute five or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B), and possession with intent to distribute marijuana, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(C). After review, we affirm.

On appeal, Shuler argues that the district court abused its discretion when it

denied his motion to withdraw his guilty plea. The problem for Shuler is that the

district court did not rule on Shuler’s motion to withdraw his guilty plea because

Shuler withdrew his motion. 

The transcript of Shuler’s sentencing hearing shows that Shuler, through

counsel, informed the court that he originally wanted to withdraw his guilty plea

because he had not received the additional one-point reduction in his offense level

for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(b). However, after

the district court informed Shuler that it would give him the additional point

reduction, Shuler said that he had only wanted to make sure he received that

additional point reduction and wanted to proceed with sentencing. 

Thus, the record clearly demonstrates that Shuler voluntarily withdrew his

motion to withdraw his guilty plea. Because the district court did not rule on

Shuler’s withdrawal motion, there is no ruling for this Court to review. See United

States v. Montoya, 782 F.2d 1554, 1556 (11th Cir. 1986) (holding that, absent

exceptional circumstances, defendant’s withdrawal of motion for mistrial left
Although Shuler cites former Rule 11(e)(1), the provision prohibiting a district court 1

from participating in plea negotiations is now found in Rule 11(c)(1), following the 2002

amendments to the Federal Rules of Criminal Procedure.

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“nothing for this [C]ourt to review,” and noting that we would not “countenance

the practice of ‘sandbagging’ the district court” by withdrawing the motion after

consultation with counsel and then arguing on appeal reversible error for failing to

grant the motion); see also United States v. Olano, 507 U.S. 725, 733-34, 113 S.

Ct. 1770, 1777 (1993) (explaining that in criminal cases plain error review under

Rule 52(b) extends to forfeited errors, in which the defendant fails to make the

timely assertion of a right, but not waived errors, in which the defendant

intentionally relinquishes or abandons a known right).

Shuler also argues that the district court violated Federal Rule of Criminal

Procedure 11(c)(1) during the sentencing hearing by pressuring him into 1

maintaining his guilty plea. Specifically, Shuler points to comments by the district

court that, if Shuler was found guilty after a trial, it might be inclined to depart

upward from the advisory guideline range because Shuler’s criminal history was

underrepresented, as follows:

I could depart upward from the guideline because he has got double

the points that are necessary for criminal history six. 

I can’t imagine any advantage of him withdrawing his plea and

going to trial if we’re only dealing with a point one that you say

delayed their giving the plea because some of advice you gave. I can

give him the extra point if that’s the issue and proceed to sentencing. 
4

I would think that if he goes to trial, is convicted, I might be

inclined to depart upward because his criminal history is underrepresented. I don’t see the advantage at this point of him

withdrawing a plea. 

Because Shuler raises this argument for the first time on appeal, we review

only for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.

2000). Error is “plain” when it is obvious and clear under current law. United

States v. Baker, 432 F.3d 1189, 1207 (11th Cir. 2005).

Rule 11(c)(1) provides that “[a]n attorney for the government and the

defendant’s attorney, or the defendant when proceeding pro se, may discuss and

reach a plea agreement. The court must not participate in these discussions.” Fed.

R. Crim. P. 11(c)(1). “Rule 11’s prohibition on court participation in plea

negotiations is designed to entirely eliminate judicial pressure from the plea

bargaining process.” United States v. Diaz, 138 F.3d 1359, 1362 (11th Cir. 1998).

Under Rule 11, a district court’s role is to evaluate a plea agreement once the

parties disclose it in open court, and, prior to that time, a court should not offer

comments regarding a possible plea agreement because such statements “are

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

quickly become the focal point of further discussions.” Id. at 1363 (quotation

marks omitted). Rule 11(c)(1) also prohibits the discussion of “the penal

consequences of a guilty plea as compared to going to trial” because such
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statements are “inherently coercive, no matter how well-intentioned.” United

States v. Johnson, 89 F.3d 778, 783 (11th Cir. 1996).

Here, Shuler does not argue, nor does the record reflect, that the district

court participated in plea negotiations prior to the entry of his guilty plea. Rather,

Shuler relies on comments made by the district court at sentencing, after he had

entered his guilty plea. However, Shuler does not cite, and we have not located,

any case applying Rule 11(c)(1) to post-plea proceedings. Moreover, neither the

plain language of Rule 11(c)(1), nor the relevant Rule 11 commentary, states that a

court cannot comment on possible penalties when addressing a motion to withdraw

a guilty plea. See Fed. R. Crim. P. 11(c)(1). Thus, even assuming without

deciding that the district court’s comments were improper under Rule 11(c)(1),

Shuler has failed to demonstrate that the alleged error is plain.

AFFIRMED.