from the United States District Court for the Western
District of Texas
SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
E. SMITH, Circuit Judge:
first time on appeal, Anthony Draper claims that the
magistrate judge ("MJ") participated in plea
negotiations in violation of Federal Rule of Criminal
Procedure 11(c)(1). Because any error was not clear or
obvious, we affirm.
was indicted for conspiring to possess with intent to
distribute 280 grams or more of crack cocaine, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846. He
retained his own counsel, Dan Wade.
plea negotiations failed. Based on representations at the
plea hearing, it appears that Wade proposed a 120-month
sentence, but the government rejected that offer. Instead,
the government proposed a plea agreement that waived
Draper's appellate rights and stipulated to a factual
basis, in exchange for a one-point reduction in the offense
level under U.S.S.G. § 3E.1(b). Wade determined the
agreement was not in Draper's interest, identifying three
defects: (1) The agreement waived Draper's appellate
rights, which Wade considered "essential"; (2) it
required Draper to stipulate to the offense as charged,
without limiting his relevant conduct; and (3) it did not
commit the government to allocuting at any particular
sentence or range. The agreement committed the government
only to the one-point reduction.
consented to administration of his guilty plea and Rule 11
allocution by the MJ and appeared before the MJ to enter a
guilty plea. At the plea hearing, Wade conveyed Draper's
intent to plead straight up to the indictment. The MJ asked
whether Wade had "conveyed any and all formal plea
offers from the government to Mr. Draper." Wade answered
affirmatively. The prosecutor then noted that the government
had proposed an agreement. Wade agreed that that proposal had
been received and rejected. When the MJ asked Draper whether
that was correct, Draper initially conferred with Wade before
saying "Yes." But, after the MJ clarified that he
was asking whether that offer had been communicated and
rejected, Draper responded that pleading straight up was
"the only plea [he'd] ever known about" and
that he was not aware a plea offer had been made.
then asked some questions to ascertain whether Draper had
been aware of the government's proposal. Draper stated,
"No offer. No, sir." Wade explained why the
agreement was not in Draper's interest and stated that
Draper rejected it "[o]nce he realized that he was
giving up his right to appeal." Draper agreed that, even if
he had not known about the offer beforehand, based on
Wade's explanation, he "kn[e]w about it" now.
The MJ said he would "still let" Draper accept the
offer if Draper so desired. But Draper, after consulting with
Wade, formally rejected it.
began to move on with the plea colloquy, but Draper
interrupted to say "[j]ust it was a misunderstanding
right then. I didn't know." The MJ renewed his
attempts to ensure Draper understood the offer and to
ascertain whether Draper was rejecting it. Draper interrupted
again: "May I ask the Court a question?" Draper
asked: "If I may ask the prosecution through the Court
what is the offer that they have, like, as of right now
besides me signing just the Factual Basis and stuff decide
[sic] that I understand, if I may. You see what
asked whether the prosecutor, Ms. Young, would "like to
speak to that." She replied, "I don't know that
I can help anything, but the offer is plead with the Plea
Agreement . . . . My understanding is that's been
rejected, correct? You don't want to sign a Plea
Agreement, correct?" Wade then chimed in: "He
doesn't want to waive his right to appeal. So, yes, he
doesn't want to sign it." Then the following
MS. YOUNG: Well, let's let Mr. Draper answer so we
actually have something on the record.
THE COURT: Mr. Draper, so they made you an offer as to the
written agreement that she's holding in her hand. It
includes a waiver of your right to appeal, I'm sure. Is
that right, Ms. Young?
MS. YOUNG: That is correct as well as other mechanisms that
you could agree with the government to do things that would
be beneficial to you should you choose to do it. And
you're rejecting that offer, correct?
THE DEFENDANT: No, ma'am.
THE COURT: You want that offer[?]
THE DEFENDANT: Yeah.
THE COURT: Okay. Let's take a break and have a seat and
let Mr. Wade go through that with you.
the recess ended, Draper, Wade, and Young had signed the
government's proposed plea agreement. The rest of the
plea hearing concluded without incident. The MJ recommended
that the district court accept the plea agreement and plea of
guilty and that Draper be adjudged guilty of conspiracy to
possess with intent to distribute crack cocaine in violation
of 18 U.S.C. § 846. ...