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United States v. Draper

United States Court of Appeals, Fifth Circuit

February 7, 2018

ANTHONY DRAPER, Defendant-Appellant.

         Appeals from the United States District Court for the Western District of Texas

          Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

          JERRY E. SMITH, Circuit Judge:

         For the 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.


         Draper 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.

         Initial 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.

         Draper 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.

         The MJ 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."[1] 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.

         The MJ 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 I'm saying?"

         The MJ 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 exchange occurred:

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 COURT: You want that offer[?]
THE COURT: Okay. Let's take a break and have a seat and let Mr. Wade go through that with you.

         When 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. ...

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