# United States Court of Appeals **for the Fifth Circuit**

No. 20-30728

United States of America,
Plaintiff—Appellee ,

versus
Oliver Pierre,
Defendant—Appellant

.

Appeal from the United States District Court for the Eastern District of Louisiana No. 2:17-CR-132-2

Before Smith, Elrod, and Oldham, Circuit Judges

. Per Curiam: * Oliver Pierre pleaded guilty to conspi ring to traffic at least 280 grams of cocaine. In exchange, the govern ment dropped a less serious charge and agreed not to pursue a sentencing enhanceme nt. In hindsight, it is clear that the sentencing enhancement could not have applied to Pierre even if the government had pursued it. So, Pierre gave up his right to st and trial to avoid

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 22, 2022 Lyle W. Cayce Clerk Case: 20-30728 Document: 00516291557 Page: 1 Date Filed: 04/22/2022No. 20-30728

2 a punishment that could never have come. Because he has shown that the district court committed plain error by accepting a plea based on an illusory benefit, we VACATE the district court’s judgment and the plea and REMAND for further proceedings consistent with this opinion.

I. In the spring of 2014, local la w enforcement began investigating the drug trafficking activities of a person called “B.P.” The officers purchased cocaine base from B.P. three times in Ap ril of that year for quantities totaling about ten grams. The DEA collected mo re information and by the next year learned that one of B.P.’s suppliers was named James Bickham. They purchased cocaine from B.P. three more times for quantities totaling about twenty-five grams. The DEA officers soon intercepted ph one calls between B.P. and Bickham and learned that the two of them hoped to make a drug deal in Houston. Specifically, they discusse d having a courier, Pierre, assist them in the deal. The officers staked out B.P.’s home at the scheduled time. They followed B.P. to a gas station, where he parked next to Pierre. Pierre tossed two bags of cocaine base into B.P.’s car, and the two of them drove away separately. The officers stopped an d detained B.P. and recovered 156.1 grams of cocaine base. Pierre was indicted for conspiring to traffic 280 grams or more of cocaine base (Count 1) and distributi ng 28 grams or more of cocaine base (Count 2). He was assigned counsel in late 2017 and over a year later successfully moved for the appointment of new counsel. Eventually a plea agreement was reached. Under it, Pierre pleaded guilty to Count 1. In return, the government agreed to request dism issal of Count 2 and agreed that it would not charge Pierre as a multip le offender under 21 U.S.C. § 851—a Case: 20-30728 Document: 00516291557 Page: 2 Date Filed: 04/22/2022No. 20-30728

3 provision which, Pierre was told, would have raised his mandatory minimum sentence from ten years to fifteen years. 1 At Pierre’s re-arraignment, the district court read Count 1 of the indictment, which charged that Pierre conspired “to distribute and possess with the intent to distribute 280 grams or more of cocaine base . . . in violation of [21 U.S.C. § 841(a)(1), (b)(1)(A)] . . . .” 2 It then explained that for him to be convicted of Count 1, the govern ment would have to prove beyond a reasonable doubt that: (1) two or mo re persons reached an agreement to possess and distribute cocaine base ; (2) Pierre knew of the agreement’s unlawful purpose; and (3) Pierre willfully joined the agreement. At that point the court did not specifically explain that the governmentwould have to prove that Pierre’s participation in the conspiracy foreseeably involved the 280-gram quantity. The factual basis for the plea prov ided by the government contained the facts surrounding the incident de scribed above. It also included a stipulation for the purposes of sentencing that Pierre had participated in the trafficking of at least 280 grams, but less than 840 grams, of cocaine base. Pierre affirmed that the information pertaining to him was true. The presentence report also noted that both the government and Pierre stipulated to the 280- to 840-gram quantity for the purposes of sentencing. But it likewise specifically noted Pierre’s role as courier for “at least 156.1 grams of crack co caine,” and that Pierre was a “minor participant in any criminal activity.” The crim inal history portion of the presentence

1 The government also agreed not to br ing “any other charges in the Eastern District of Louisiana arising from [Pierre’s] vi olations of the Federal Controlled Substances Act prior to October 8, 2015,” as long Pie rre provided the details of those crimes.

2 Because this charge was based on an alle ged conspiracy, Pierre was also charged under 21 U.S.C. § 846. Case: 20-30728 Document: 00516291557 Page: 3 Date Filed: 04/22/2022No. 20-30728

4 report identified five prior state conv ictions, and Pierre’s sentencing range was thus calculated as 120 to 137 months . The district court sentenced Pierre to the statutory minimum 120 months. Pierre appealed the judgment and sentence to this court, arguing for the first time that the district court erred by accepting his guilty plea and that he was unconstitutionally deprived of effective assistance of counsel.

II. Pierre argues that his plea was not knowing and voluntary and thus should be vacated because, among othe r things, it was conditioned on the government agreeing not to pursue a sentencing enhancement under a provision that could not apply to him. We agree with Pierre and hold that that the district court plainly erre d by accepting his plea under these circumstances.

A. Pierre argues that the district cour t erred by accepting his guilty plea. Because he raises this challenge for th e first time on appeal, we review for plain error. See United States v. Hicks , 958 F.3d 399, 401 (5th Cir. 2020); United States v. Hughes , 726 F.3d 656, 659 (5th Cir. 2013). Under the plain error standard, Pierre must show (1) an e rror, (2) that is clear or obvious, and (3) that affected his substantial rights. United States v. Trejo , 610 F.3d 308,
319 (5th Cir. 2010). When challengin g the acceptance of a guilty plea, specifically, he must demonstrate “a re asonable probability” that he would not have pleaded guilty without the error. Hicks , 958 F.3d at 401–02. And “[i]n making this determination, we may consult the whole record on appeal.” United States v. Reyes , 300 F.3d 555, 559 (5th Cir. 2002). Finally, if Pierre satisfies each criterion, we may vacate the judgment if the error “seriously affect[s] the fairness, inte grity or public reputation of judicial Case: 20-30728 Document: 00516291557 Page: 4 Date Filed: 04/22/2022No. 20-30728

5 proceedings.” United States v. Young, 470 U.S. 1, 15 (1985) (quotingUnited States v. Atkinson , 297 U.S. 157, 160 (1936)).

B. Pierre argues that his guilty pl ea was not knowing and voluntary because it was induced by the government’s promise not to pursue a sentencing enhancement under a provis ion which could not have applied to him. 3 The government concedes that th e sentencing enhancement provision could not have applied but argues thatPierre cannot satisfy the plain error standard because he cannotshow that there is a reasonable probability he would not have pleaded guilty without the error. We agree with Pierre. A guilty plea must be knowing and voluntary. Parke v. Raley , 506 U.S. 20, 28 (1992). “That is so because a guilty plea constitutes a waiver of three constitutional rights: the right to a ju ry trial, the right to confront one’s accusers, and the privilege ag ainst self-incrimination.” Id. at 29. A guilty plea is not sufficiently voluntary if it is induced by“deception, an unfulfillable promise, or mi srepresentation . . . .” United States v. Amaya , 111 F.3d 386, 389 (5th Cir. 1997). “A plea of guilty that is based on the fear of a non-existent penalty can be neither knowing nor intelligent, and this flaw colors the fundamental fairness of the entire proceeding.” Kennedy v. Maggio , 725 F.2d 269, 273 (5th Cir. 1984). Under this standard, Pierre’s plea was not knowing and voluntary, so the district court erred by accepting it. His guilty plea was induced in part by

3 The dissenting opinion attempts to cabin such a challenge to a collateral action under 28 U.S.C. § 2255 instead of in a direct appeal. But we regularly consider involuntaryplea claims on direct appeal, and we will not depart from our standard practice here. See, e.g. , United States v. Diaz , 989 F.3d 390, 392–94 (5th Cir. 2021); United States v. Scott , 857 F.3d 241, 244–46 (5th Cir. 2017); United States v. Washington , 480 F.3d 309, 315–16 (5th Cir. 2007). Case: 20-30728 Document: 00516291557 Page: 5 Date Filed: 04/22/2022No. 20-30728

6 the government’s promise not to charge him as a multiple offender “having at least one prior felony drug conviction, which would have resulted in a mandatory sentence of at least fift een (15) years” under 21 U.S.C. §§ 841(b)(1)(A) and 851. The current ve rsion of § 841(b)(1)(A) explains that a defendant’s mandatory mi nimum sentence may be increased from ten to fifteen years if he has a “prior conviction for a serious drug felony.” A “serious drug felony” is one described in 18 U.S.C. § 924(e)(2) for which the defendant served a term of imprisonmen t of over a year and for which the defendant’s release from imprisonment occurred within fifteen years of the current offense. 21 U.S.C. § 802(57 ). And 18 U.S.C. § 924(e)(2)(A)(ii) limits the provision to offenses which, “under State law, involv[e] manufacturing, distributing, or possessi ng with intent to manufacture or distribute, a controlled substance . . . [and] for which a maximum term of imprisonment of ten years or more is prescribed by law.” Pierre had three prior convictions for possessing a controlled substance. As the government conced es, those offenses “do not include the necessary elements of manufacturing, dist ributing, or possessing with intent to do so,” so they do not provide a ba sis for the § 841(b)(1)(A) enhancement. And Pierre’s one conviction for distribution carries a maximum sentence of less than ten years. 4 So, Pierre’s plea was induced by the promise of an illusory benefit and thus was not suffi ciently knowing and voluntary.

4 The sentencing enhancement would have applied to Pierre under the previous version of that provision. Before 2018, § 841(b)(1)(A) provided for an enhanced mandatory minimum sentence of 20 years and simply a pplied to “felony drug offense[s],” which included any drug offense “punishable by impr isonment for more than one year.” 21 U.S.C. § 802(44). This change to the statute was made after Pierre was indicted but before he pleaded guilty. Presumably, that is the reason this error was made and neither the district court nor the parties caught it initially. Case: 20-30728 Document: 00516291557 Page: 6 Date Filed: 04/22/2022No. 20-30728

7 This error flatly contradicted the a pplicable statutory language of the sentencing enhancement provision, and so was “clear or obvious.” Cf. Trejo , 610 F.3d at 319. To prove that any e rror was “clear or obvious,” a defendant need not identify a past decision of this court directly holding in the defendant’s favor on the exact same issu e. Instead, our rule is that a defendant must show that the “erro r is clear under existing law.” United States v. Dunigan , 555 F.3d 501, 506 (5th Cir. 2009) (quoting United States v. Maturin , 488 F.3d 657, 663 (5th Cir. 2007)). An undisputed contradiction of statutory language is an error thatis clear under existing law. United States v. Aderholt, 87 F.3d 740, 744 (5th Cir. 1996) (“The error is evident from a plain reading of the statute and thus, is obvious.”). There is no dispute that the sentencing enhancement provision co uld not have applied to Pierre, and the parties agree on that point. Th us, prongs one and two of the plain error analysis are satisfied. See Trejo , 610 F.3d at 319 (identifying prongs one and two of the plain error analysis as (1 ) whether an error occurred, and (2) whether the error was clear or obvious).

But Pierre must also show that abse nt the error there is a reasonable probability that he would no t have pleaded guilty. Hicks , 958 F.3d at 401–02. He has made this showing because the promise not to seek the inapplicable sentence enhancement was the primary bene fit he was to receive in exchange for pleading guilty to Count 1. If applicable, the enhancement would have increased his mandatory minimum sentence by fifty percent, from ten years to fifteen years. Avoiding that enhancement is a substantial benefit and, indeed, the presentence report describe d it as the “[i]mpact” of the plea agreement. Moreover, as Pierre points out, he and his co unsel participated in plea negotiations for quite a long time, and Pierre only agreed to plead guilty after the government offered not to seek the enhancement. The plea’s timing does not prove a direct causal relationship between the government’s promise and Pierre’s plea, but it certainl y weighs in Pierre’s favor; it suggests Case: 20-30728 Document: 00516291557 Page: 7 Date Filed: 04/22/2022No. 20-30728

8 that the promise made a difference for his decision. And, finally, Pierre conceivably could have prevailed at tria l had he chosen to proceed. Certainly we cannot determine at this stage whatadditional evidence against him the government might have gathered if proc eedings continued towards trial. But it is likely that the promise not to pu rsue a substantially enhanced sentence played a significant role in his decision to plead guilty. Of course, in exchange for Pierre ’s guilty plea to Count 1, the government also agreed to move to dism iss Count 2. At the surface level, then, Pierre had another incentive to plead guilty besides the promise not to seek the inapplicable sentence enhancemen t. But the surface is as deep as that additional benefit goes. Count 2 ch arged Pierre with distributing twentyeight grams or more of cocaine base. That crime is less serious than the Count 1 offense 5 and in this case is based on th e same conduct as that to which the alleged conspiracy was aimed; thus , had Pierre been convicted of both Count 1 and Count 2, the Count 2 conviction likely would have been subsumed by Count 1 for the purposes of sentencing. See U.S.S.G. § 3D1.2 cmt. 4 (“When one count charges a cons piracy or solicitat ion and the other charges a substantive offense that was the sole object of the conspiracy or solicitation, the counts will be grouped together under [U.S.S.G. § 3D1.2(b)].”). And if at trial Pierre had been convicted on Count 2 only, that offense carries a lower sent encing range than Count 1. See 21 U.S.C. § 841(b)(1)(A)(iii), (b)(1)(B)(iii); 21 U.S. C. § 846. In other words, it is unlikely that a Count 2 conviction woul d have affected his guidelines range for sentencing. The government therefore conveyed little (if any) benefit by

5 The Count 1 offense to which Pierre pleaded guilty, conspiracy to traffic 280 grams or more of cocaine base, carries a stan dard sentencing range of 10 years to life imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii) ; 21 U.S.C. § 846. The Count 2 offense, distributing 28 grams or more of cocaine base, carries a standard sentencing range of 5 to 40 years imprisonment. 21 U.S.C. § 841( b)(1)(B)(iii). Case: 20-30728 Document: 00516291557 Page: 8 Date Filed: 04/22/2022No. 20-30728

9 dismissing the Count 2 charge in exchange for his guilty plea to Count 1, leaving as the primary “benefit” th e illusory promise not to pursue an inapplicable sentencing enhancement. 6

It is true that Pierre was ulti mately sentenced to the statutory minimum for the Count 1 offense to whic h he pleaded guilty. That means that if he had not pleaded guilty, and then had proceeded to trial and been convicted on either count, he could have been sentenced to a longer term. But, contrary to the government’s posi tion, Pierre nonetheless could have been prejudiced by the misconce ption about the applicability of the sentencing enhancement. When reviewin g the acceptance of a guilty plea for plain error, the question is not whethe r the plea likely caused the defendant to be issued a longer sentence, but wh ether there is a reasonable probability that absent the error the defendant would not have entered the plea. United States v. Dominguez Benitez , 542 U.S. 74, 83 (2004). Pierre has shown that the core benefit he received from the guilty plea was the government’s promise not to charge him as a multiple offender. Thus, there is a reasonable probability that he would not have entere d the plea if he understood that the benefit was illusory. Under Dominguez Benitez , he has satisfied the third element of plain error review.

6 The government also agreed not to bring “any other charges in the Eastern District of Louisiana arising from [Pierre’s] vi olations of the Federal Controlled Substances Act prior to October 8, 2015,” as long Pierre provided the details of those crimes. The statute of limitations applicable to such offenses is five years. 18 U.S.C. § 3282(a). Because Pierre pleaded guilty in June of 2019, the gove rnment’s promise could have applied only to an offense committed between mid-2014 and earl y October of 2015. The record does not show that the government was in a position to charge Pierre with any such offense. Thus, it is unlikely that the promise gave Pierre a significant benefit. Notwithstanding this additional promise the government made, ther e is still a reasonable probability that the illusory promise not to pursue the sentencingenhancement affected Pierre’s decision to plead guilty. Case: 20-30728 Document: 00516291557 Page: 9 Date Filed: 04/22/2022No. 20-30728

10 Finally, Pierre must show that the error seriously affects the fairness, integrity, or public reputati on of judicial proceedings. Young, 470 U.S. at 15. If he does, we “may then exercise [our] discretion to notice the error.” United States v. Serna-Villarreal, 352 F.3d 225, 231 (5th Cir. 2003). Under our precedent, we conclude that Pierre has satisfied this criterion. The right to a jury trial is one of the primary co nstitutional safeguards for fairness and integrity in judicial proceedings. Thus, as we have explained, “[t]he integrity of the plea bargaining syst em is ‘vital to our nati onal system of criminal justice,’” and “[m]aintaining that integrity requires diligently policing its failure to function properly.” United States v. Palmer, 456 F.3d 484, 491 (5th Cir. 2006) (quoting United States v. Ashburn , 20 F.3d 1336, 1347 (5th Cir. 1994)). When a plea is induced by the government’s promise of an illusory benefit, and so the defendant forgoes a fundamental right because he wrongly believes doing so will bring him a substa ntial benefit, the criminal justice system has “fail[ed] to function properly.” See Palmer, 456 F.3d at 491. In this case Pierre lost the opportunity to pursue a more favo rable outcome in a manner consistent with his fundamental ri ghts—either by going to trial or by negotiating a different plea agreemen t founded on accurate assumptions—so we exercise our discretion to va cate the judgment and his plea. 7

7We consider this case appropriate for us to exercise our discretion under prong four of the plain error analysis in part because Pierre could potentially negotiate a significantly more favorable plea deal if given the chance. If, for example, he pleaded guilty to participating in the trafficking of anythi ng less than the 280-gram quantity of cocaine base, he would face a five-year mandatory minimum sentence instead of a ten-year mandatory minimum. Compare 21 U.S.C. § 841(b)(1)(A), (b)(1)(A)(iii), with id. § 841(b)(1)(B), (b)(1)(B) (iii). Such a charge would also correspond to a lower base offense level. Compare U.S.S.G. § 2D1.1(c)(5), with U.S.S.G. § 2D1.1(c)(6). With all else equal, those changes could reduce Pierre’s guide lines minimum sentence to 92 months (a sentence nearly twenty-five percent shorter th an the 120-month sentence he received) and Case: 20-30728 Document: 00516291557 Page: 10 Date Filed: 04/22/2022No. 20-30728

11 * * * Thus, the district court plainly erre d when it accepted Pierre’s guilty plea that was induced bya promise not to pursue a sentencing enhancement that could not have applied. We therefore VACATE the district court’s judgment and the plea and REMAND to the district court for further proceedings consistent with this opinion. 8

his guidelines maximum to 115 months (which is less than the 120-month sentence he received).

8 Pierre also argues that his plea was not knowing and voluntary because the district court failed to follow the requ irements of Rule 11 of the Federal Rules of Criminal Procedure. He claims, first, that the districtcourt failed to properly advise him of the nature of the charge against him as required by Ru le 11(b)(1)(G). Relatedly, he claims that the court erred by accepting his guilty plea wi thout a sufficient factual basis for the drug quantity as required by Rule 11(b)(3). Because we vacate the judgment entered on his guilty plea and remand for further proceedings, we need not address these alternative arguments for vacating. For the same reason, we decline to address Pierre’s argument that he was deprived of effective assistance of counsel. But we note that rarely will we consider such claims on direct appeal. See United States v. Gulley , 526 F.3d 809, 821 (5th Cir. 2008) (“[T]he ‘general rule in this circuit is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has no t been raised before the district court since no opportunity existed to develop the reco rd on the merits of the allegations.’” (quoting United States v. Higdon , 832 F.2d 312, 313–14 (5th Cir. 1987))); United States v. Gordon , 346 F.3d 135, 136 (5th Cir. 2003) (“[A] § 2255 motion is the preferred method for raising a claim of ineffective assistance of counsel.”). Case: 20-30728 Document: 00516291557 Page: 11 Date Filed: 04/22/2022No. 20-30728

12 Andrew S. Oldham , Circuit Judge , dissenting: Pierre bears the burden of showing plain error in this court. That means he must establish “(1) that the district court committed an error (2) that is plain and (3) affects his subs tantial rights and (4) that failure to correct the error would ‘seriously affe ct the fairness, integrity or public reputation of judicial proceedings.’” United States v. Sanchez-Hernandez , 931 F.3d 408, 410 (5th Cir. 2019) (quoting Johnson v. United States , 520 U.S. 461, 467 (1997)). Pierre cannot make that show ing as to the third or fourth prongs. I therefore respectfully dissent. One overarching procedur al problem afflicts the majority’s analysis: Pierre is raising his involuntary-plea claim, not by way of a 28 U.S.C. § 2255 motion, but on direct appeal. That matters because a § 2255 motion would allow the district court to “grant a prom pt hearing” on Pierre’s claim and to “determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b) (emphasis added). That factfinding mechanism is crucial for cl aims, like ineffective-assistance-of-counsel claims, that are predicated on facts outside th e trial record. For that very reason, “the general rule in this circuit is th at a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” United States v. Gulley , 526 F.3d 809, 821 (5th Cir. 2008) (quotation omitted); see also Massaro v. United States , 538 U.S. 500, 504 (2003) (“[I]n most ca ses a motion brought under § 2255 is preferable to direct appeal for decidi ng claims of ineffective assistance.”);

ante , at 11 n. 8 (citing this rule favorably) . Pierre’s involuntary-plea claim, no less than his ineffective-assistance claim, turns on facts that he has not proved

. Both claims turn on who said what and when in the plea negotiations between his lawyer and the prosecutor. The majo rity simply assumes that Pierre’s Case: 20-30728 Document: 00516291557 Page: 12 Date Filed: 04/22/2022No. 20-30728

13 assertions are true and then vacates his conviction based on nothing more than his assertions. There is zero basi s in law or logic for that approach.

I. The legal standard for our prong-three prejudice inquiry is undisputed. We must ask whether there is “a reasonable probability that, but for the error, [the defendant] would not have entered the plea.” United States v. Dominguez Benitez , 542 U.S. 74, 83 (2004) (in the context of Federal Rule of Criminal Procedure 11); see also United States v. Reyes , 300 F.3d 555, 558 (5th Cir. 2002) (“Rule 11 ensures that a guilty plea is knowing and voluntary.”). So Pierre must show a “reasonable probability” that, if the district court had noticed the plea involved an unfulfillable promise, he wouldn’t have pleaded guilty to Count 1 (the conspiracy charge). See Dominguez Benitez , 542 U.S. at 83; United States v. Hicks , 958 F.3d 399, 401 (5th Cir. 2020). That’s tough to do. Co nsider, for example, United States v. AlvaradoCasas , 715 F.3d 945 (5th Cir. 2013). In that case, the district court had wrongly told the defendant that, if he pleaded guilty, “he faced a maximum of ten years of imprisonment.” Id. at 953–54. His counsel told him the same thing. Id. at 954

. In fact, his maximum exposure was twice that—twenty years. Ibid. After the defendant pleaded guilty, he was in fact sentenced to 190 months—“70 months greater than the 10-year maximum possible prison sentence of which his counsel and the district court advised him.” Id. at 954 (quotation omitted). Despite all of that , this court held the defendant failed to show prejudice. See id. at 954–55 (considering, inter alia , the otherwisegenerous plea agreement, the fact th at the PSR did not share the court’s error, and the defendant’s failure to showhe had been ready to go to trial); see also United States v. Molina , 469 F.3d 408, 412 (5th Cir. 2006) (holding the third prong unsatisfied and explaini ng the defendant did not “direct this Case: 20-30728 Document: 00516291557 Page: 13 Date Filed: 04/22/2022No. 20-30728

14 court to any portion of the record supporting the proposition that the maximum sentence for count three affect ed his plea decision. Because [the defendant] has not satisfied his burd en, we affirm his conviction.”). The majority opinion holds Pierre has shown “that absent the error there is a reasonable pr obability that he would no t have plea ded guilty.” See

ante , at 7–10. The majority gives five ma in reasons for that holding. Each of those reasons, naturally, focuses on the Government’s promise not to seek an inapplicable sentencing enhancemen t. At no point does the majority acknowledge that it is climbinguphill against precedents like AlvaradoCasas —nor does it acknowledge that the absence of a § 2255 factual hearing renders Pierre incapable of making th e required showing in this case. I reproduce the majority’s stated reasons for that holding here, in my own order. (1) The PSR described th e Government’s meaningless promise as the plea agreement’s “impact.” Id. at 8. (2) Pierre and his first lawyer had been negotiating with the Government for a long time, and Pierre “only agreed to plead guilty after the go vernment offered not to seek the enhancement.” Ibid. (citing only Pierre’s brief in support). (3) “Pierre conceivably could have prevailed attrial had he chosen to proceed.” Ibid. But see ibid. (acknowledging that “we cannot determine at this stage what additional evidence against him the government might have gathered if proceedings continued towards trial”). (4) “If applicable, the enhancement would have increased his mandatory mi nimum sentence by fifty percent, from ten years to fifteen years.” Ibid. And finally, (5), the other promises in Pierre’s plea agreement went only as d eep as the “surface,” so when the nosentencing-enhancement promise turned ou t to be empty, Pierre got little out of the deal. See id. at 8–9. So goes the reasoning. The first three reasons aren’t probat ive at all. (1) I’ m not sure what the majority means by its quotation of th e “impact” phrase in the PSR. Is the Case: 20-30728 Document: 00516291557 Page: 14 Date Filed: 04/22/2022No. 20-30728

15 idea that Pierre must have relied on th e PSR to understand what the plea deal entailed, and that the PSR framed the deal as being solely about the sentencing enhancement? If so, that’s descriptively inaccurate: Elsewhere, the PSR acknowledged the Governmen t’s other two promises, which I address in more detail below. And itmakes little sense to treat the PSR’s characterization of the plea agreemen t as more probative than the agreement itself—which clearly made th ree promises, not just one. Reason (2) is baseless because the re cord says nothing about the inner workings of the plea negotiations. Th e record shows that Pierre and the Government repeatedly, and successfully , asked the district court to push back the trial date while they hammer ed out a plea agreement. The record shows that, in December 2018, Pierre wr ote the district judge a letter asking for new counsel, and that he got his wi sh in February 2019. And the record shows that the parties notified the cour t of their plea ag reement a few months later, in June 2019. That’s it . That’s all the record shows. The majority simply assumes that Pierre was holding out for a better deal all that time—and that he agr eed to plead guilty only after the Government sweetened the pot by prom ising not to seek the sentencing enhancement. They act as if we knowthe Government had offered both to drop Count 2 and to forego other charges all along, that Pierre was repeatedly rejecting that offer throughout the negoti ations, and that he agreed to plead guilty only after the Government added the sentencing-enhancement promise. But the record suggests no such thing. Maybe Pierre could prove the Government’s promise was material. Maybe he couldn’t. But that’s why we have § 2255 proceedings and eviden tiary hearings. I am unaware of any authority that says we can simply take the prisoner’s allegations as fact and grant a new trial based on no evidence. Case: 20-30728 Document: 00516291557 Page: 15 Date Filed: 04/22/2022No. 20-30728

16 Reason (3) is the weakest. Here, the majority indulges in pure speculation that Pierre may have fared we ll if he’d decided to go to trial. As the majority seems to acknowledge, we have no idea how strong the Government’s case would have been if it had tried to prove Count 1. See ante , at 7–8. Reason (4) also does nothing. The Government promised not to seek the sentencing enhancement, and the enhancement would’ve bumped Pierre’s minimum sentence from 10 to 15 years. The question is: Can we infer from the existence of the promise, res ipsa loquitur, that there’s a “reasonable probability” Pierre wouldn’t have pleaded guilty without it? See Dominguez Benitez , 542 U.S. at 83. The answer is no. Because the Government gave Pierre more than one promise in exchange for his guilty plea, the mere existence of the no-sentencing-enhanc ement promise doesn’t let us make any counterfactual inferences at all. Consider a monopsony situation wher e one seller (“S”) agrees to sell a good (“G”) to one buyer (“B”) for $1 00. After the deal goes through, can we infer that S wouldn’t have agreed to sell for $75? What about $50? What about a mere $1? Nope. Without more in formation, the mere fact of the deal tells us only two things: thatS valued G at something less than $100, and that B valued G at something more than $100. So we have no clue what S would’ve done if B had offered less than $100.

We likewise have no clue who woul d’ve bargained for what in the counterfactual world imagined by Pi erre and the majority. The Government offered Pierre three things in exchange for his guilty plea: the promise not to seek the sentencing enhancement, th e promise to drop the indictment’s second charge (“Count 2”), and the promise not to prosecute Pierre for certain crimes, on the condition that he disclose those crimes. Pierre accepted. Does it follow that Pierre wouldn’t have accepted if the Case: 20-30728 Document: 00516291557 Page: 16 Date Filed: 04/22/2022No. 20-30728

17 Government had offered only to drop Count 2? Absolutely not. We don’t have enough information to say anythingabout that hypothetical. Reason (4), like reasons (1)–(3), tells us nothing useful. Nor does my view entail that a de fendant can never satisfy the third plain-error prong after pleading guilty. Imagine this was a § 2255 case. If so, Pierre would have had the opportunity fora factual hearing in district court. See 28 U.S.C. § 2255(b). Imagine that, at the hearing, Pierre showed the Government had first offered only to dr op Count 2, and Pierre refused that offer. And suppose the Government had only then came back with a promise to drop Count 2, paired with a pr omise not to seek the sentencing enhancement. In light of those facts, we would have very strong reason to believe Pierre wouldn’t have plea ded guilty without the no-sentencingenhancement promise. And the absence of such showings in the case before us perfectly illustrates why this claim cannot be resolved without facts. Cf. Gulley , 526 F.3d at 821 (ineffective-assistan ce claims generally not cognizable on direct appeal). In all events, the mere existence of the Government’s promise can’t answer the reasonable-p robability question all by itself. That leaves reason (5). It’s th e oddest of them all. The majority recognizes that the Government made th ree promises in the plea agreement: (A) a promise to dismiss Count 2; (B) a promise not to bring future charges; and (C) an illusory promise not to seek an inapplicable sentencing enhancement. All agree that the value of (C) is zero. But for the majority’s reason (5) to make sens e, the value of A and B also must equal zero. Yet the majority effectively concedes that (A) and (B) were not worth zero. The most the majority can say is th at (C) was Pierre’s “prima ry” benefit under the plea agreement, and that (A) + (B) conferred “little (if any)” additional benefit on him. See ante , at 9. All that matters, however, is that (A) + (B) conferred

some additional benefit; because they did—as the majority effectively concedes—Pierre undisputedly benefited from his plea. Case: 20-30728 Document: 00516291557 Page: 17 Date Filed: 04/22/2022No. 20-30728

18 And the majority is correct not to di spute the value of (A) + (B). As to (A), the Government agreed to dismiss Count 2 entirely. The majority says that might not matter because a convicti on on both Counts 1 and 2 would not affect Pierre’s Guidelines range. See id. at 8–9 (citing U.S.S.G. § 3D1.2). But the majority ignores the fact that the sentencing court could’ve determined the applicable range was inappropriat e for a multi-count conviction and departed accordingly. In United States v. Saldana , 427 F.3d 298 (5th Cir. 2005), for example, § 3D1.2 of the Guidelines required the defendant’s convictions be grouped together. Compare id. at 311 (explaining how the Guidelines work and explaining, “no [multiple-convictions] adjustment was available in this case” under the Guidelines), with ante , at 8–9 (explaining the same in this case). But in Saldana , the district court consciously chose to impose consecutive sentences anyw ay, “quadrupl[ing] the maximum sentence allowable . . . under the Guide lines.” 427 F.3d at 308–12. We upheld that decision as an upward departure from the Guidelines. Id. at 311–12. It’s not my view that such upward departures are categorically permissible. But that doesn’t matter: For a defendant fa cing prison, the prospect of a multicount conviction is a serious risk to be mitigated. The Government’s promise to drop Count 2 didn’t just mitigate th at risk for Pierre, it eliminated it entirely. It blinks reality to dismiss the obvious benefit of (A) as basically nothing. As to (B), the Government promis ed not to bring certain charges against Pierre in the future, so long as Pierre disclosed those offenses in full. The majority attempts to dismiss this promise in a footnote, arguing that “[t]he record does not sh ow that the government was in a position to charge Pierre with any such offense.” Ante , at 9 n. 6. But that’s not good enough: It’s Pierre ’s burden to establish plain e rror, including the third prong. See Sanchez-Hernandez , 931 F.3d at 412 n. 3 (“Unde r prong three, it remains the defendant’s burden (not the government’ s) to prove prejudice.”). And that Case: 20-30728 Document: 00516291557 Page: 18 Date Filed: 04/22/2022No. 20-30728

19 means it’s Pierre ’s burden to establish the Government’s no-charge promise was meaningless. He hasn’t done so; instead, his briefing ignored this promise entirely. That alone is fatal to his plain-error argument. See Molina , 469 F.3d at 412 (“Moreover, [the defendan t] does not direct this court to any portion of the record supporting the proposition that the maximum sentence for count three affected his plea decision. Because [the defendant] has not satisfied his burden , we affirm his convicti on.” (emphasis added)). In sum: The majority’s key cl aim (to the extent it even makes the claim) on the third prong is that the only benefit of the plea agreement was the Government’s illusory promise. See ante , at 9. But the majority’s five reasons to believe that are themse lves illusory—and that’s because the majority is substituting its own hypo theses for the factual development a § 2255(b) hearing is supposed to provide.

II. In any event, this is not the kind of extreme case that warrants an exercise of our discretion under the fourth plain-error prong. This prong involves “discretion,” Henderson v. United States , 568 U.S. 266, 272 (2013), and “a plain error affecting substantia l rights does not, without more,” satisfy this standard, United States v. Olano , 507 U.S. 725, 737 (1993). Indeed, Rule 52(b) “authorizes the Courts of A ppeals to correct on ly particularly egregious errors.” United States v. Young, 470 U.S. 1, 15 (1985) (quotation omitted). The majority gives short shrift to one key fact: Pierre got the 10-year, minimum sentence for his Count 1 offense—an offense he admitted under oath. It’s not as if Pierre was sent enced under the inapplicable mandatoryminimum of 15 years. Nor did the sent encing court impose a life sentence (which the statute would’ve allowe d). There’s nothing “particularly egregious” about that. See ibid. (quotation omitted); cf. Alvarado-Casas , 715 Case: 20-30728 Document: 00516291557 Page: 19 Date Filed: 04/22/2022No. 20-30728

20 F.3d at 954–55 (denying plain-error relief partially because the Government had dropped many charges as part of the plea agreement, which suggested the bargain was a fair one). The majority’s response, see ante , at 11 n.7, is to form yet another hypothesis: that Pierre might be able to get a still better deal on remand. In the majority’s words, “[i]f, for example, [Pierre] pleaded guilty to participating in the trafficking of anyt hing less than the 280-gram quantity of cocaine base [the Count 1 offense], he would face a five-year mandatory minimum sentence instead of a ten-year mandatory minimum.” See ibid. What conceivable basis is there for this speculation? Pierre already got the minimum sentence for his crime. The on ly way to get a better deal is to suggest—again without a single piec e of factual support—that Pierre somehow, maybe, could’ve beaten the rap for th e crime he admittedly committed. Or perhaps the Government would’ve allowed him to plead to something less than conspiring to tra ffic 280 grams or more of cocaine base. But criminal appeals don’t turn on pe rhapses, would’ves, could’ves, and maybes. We ordinarily require prisoners to prove their claims before vacating their convictions. I would’ve followed our usual course. I respectfully dissent. Case: 20-30728 Document: 00516291557 Page: 20 Date Filed: 04/22/2022