[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 10-11424                ELEVENTH CIRCUIT
                          Non-Argument Calendar               MAY 16, 2011
                        ________________________               JOHN LEY
                                                                CLERK
                D.C. Docket No. 1:06-cr-00217-RWS-CCH-1

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

RODNEY SHAW,
a.k.a. Poncho,

                                                      Defendant-Appellant.

                       ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                               (May 16, 2011)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:
      Rodney Shaw appeals his conviction, following a guilty plea, of conspiracy

to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846,

841(a)(1), (b)(1)(A)(iii). He argues that the magistrate judge committed plain

error by participating impermissibly in his plea discussions with the government.

The government concedes the error and suggests that we instruct the district court

to reassign the case on remand. For the reasons set forth below, we vacate Shaw’s

conviction and remand for further proceedings.

                                          I.

      In 2006, a federal grand jury indicted Shaw on three counts: (1) conspiracy

to possess with intent to distribute cocaine and at least 50 grams of cocaine base,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), (b)(1)(C), 846, 851;

(2) possession of a firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1); and (3) possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g).

      On September 17, 2009, Magistrate Judge Christopher Hagy convened a

suppression hearing. During the hearing, defense counsel Thomas Hawker noted

that the parties’ “difficult” plea negotiations were not yet resolved, but they had

reached a point where Shaw wanted to take a plea, so he wished to postpone the

instant hearing until September 29th. The prosecutor, Matthew Jackson, stated

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that the government was not ready to proceed with the suppression hearing, and he

set forth the following time line of the plea negotiations. The hearing originally

had been scheduled for August 24th, but counsel contacted him that day to state

that Shaw was willing to enter into a binding plea. Accordingly, the court had

postponed the suppression hearing to September 4th. During the last week of

August, Jackson offered defense counsel a binding plea agreement for a 15-year

sentence for the § 924(c) charge. Jackson noted to the court that Shaw was

eligible for two § 851 enhancements on the drug charge, so if he were convicted at

trial, he would face a mandatory-minimum sentence of life imprisonment.

      Jackson further stated that, on August 31st, counsel informed him that Shaw

would plead to the § 924(c) charge in exchange for a 15-year sentence and

dismissal of the other charges. Later that day, though, Jackson was told that Shaw

had changed his mind and wished to plead to 15 years’ imprisonment on the drug

charge, instead. Because everyone believed that a plea ultimately would be

entered, the hearing was postponed again to September 17th. On September 11th,

Jackson offered defense counsel a binding plea agreement for 15 years’

imprisonment for the drug charge. Counsel said that Shaw would accept the plea,

and that the instant suppression hearing would be unnecessary. On September

15th, Jackson sent the plea agreement to counsel. The next morning, counsel

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informed Jackson that Shaw had changed his mind and would go forward with the

suppression hearing unless the government agreed to a sentence of less than 12

years’ imprisonment on one of the charges.

      Jackson added that Hawker had asked that morning for a 12.5-year sentence,

which the government found unacceptable. Jackson said that, if Shaw went

forward with the suppression hearing, he would file the § 851 notice seeking the

mandatory-minimum life sentence. He also characterized Shaw’s negotiations as

“games” and an attempt to “play the government,” and indicated that, if Shaw did

not plead by 5:00 p.m. the next day, September 18th, the government would make

no further offers and would pursue both the § 851 enhancements and a possible

superseding indictment containing easier-to-prove substantive drug charges.

      Jackson expressed concern that Shaw would agree to take the 15-year deal,

then back out on the night before the rescheduled suppression hearing. He said, “I

don’t know how to necessarily resolve this and hopefully Your Honor has a better

idea, because I can’t think of one.” The following exchange then took place:

      THE COURT: Well, maybe we ought to – I mean first, he’s got the
      right to negotiate just to find out how far he can bring you down. I
      think he’s reached bottom at 15.
             MR. JACKSON: He has.
             THE COURT: I know with me, I’m not going to continue this
      thing anymore. We’ve got to move this thing forward and let the
      chips fall where they may.

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             ....
             And I think he knows that. But you can’t blame anybody for
      trying to negotiate. I know you are not trying to blame, but the point
      is we have been at it for six months. It’s making the case difficult,
      it’s backing up everybody’s dockets, and it’s time to fish or cut bait.
             ....
             Either take 15 years or take what you get if you are found
      guilty.
             MR. JACKSON: I agree.
             ....
             . . . [W]hat we could do is say we need to have a plea before
      Judge Story on or before September . . . 29th. If it falls through, then
      we can have our suppression hearing . . . either later that week or the
      following Monday.
             THE COURT: Okay.

Judge Hagy rescheduled the hearing and addressed Shaw:

      All right. We will schedule it on October the 7th at 9:00 a.m. and we
      are going forward. No more – I don’t care whether you are discussing
      a plea or not. We are going to go forward and get this thing moving
      and let the chips fall where they may.
             Again, Mr. Shaw, you are entitled to negotiate. I don’t hold
      that against you. But I’ve got to move the docket and we’ve got to let
      things happen. And it seems to me, you know, if you are fishing and
      you are testing for the bottom with a sinker, I think you’ve hit bottom.
      They are not going to go any further than that. And it sounds like
      they are going to ask for more if you don’t go there. So that’s the
      choice in front of you and we’ll just go ahead on that basis.
             So is it your intent to indicate before me today that the
      defendant is willing to enter a plea of guilty to the drug charge or the
      [§] 924(c) [charge]?

      Hawker and Jackson confirmed the offer for a 15-year sentence for

conspiracy to distribute powder cocaine. Hawker stated that he and Shaw had



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talked about the written plea agreement over the phone, had reviewed it briefly

that morning, and had discussed the previous version in detail. The exchange

continued:

      THE COURT: Does Mr. Shaw intend, then, to plead guilty to the
      charge of Count One limited to powder?
              MR. HAWKER: Limited to powder.
              THE COURT: And to a 15-year sentence?
              MR. HAWKER: That is my understanding of his intent as we
      sit here today.
              Is that correct?
              THE COURT: Is that your intent, Mr. Shaw?
              THE DEFENDANT: Yes.
              THE COURT: Yes?
              THE DEFENDANT: Yes, sir.
              THE COURT: Okay. Has anybody – is that voluntary? Has
      anybody forced you or coerced you or is this a decision you have
      reached after discussing it with counsel of your own free will?
              THE DEFENDANT: Well, really, Your Honor, my back is kind
      of against the wall, I mean.
              THE COURT: Well, I mean other than that. I know your back
      is against the wall. I mean you’ve got to know your options and they
      need to tell you your options. And your options would be you could
      get not guilty if everything went – or you could get 15 years or you
      could get life.
              THE DEFENDANT: That’s what I’m saying.
              THE COURT: And your counsel knows what the evidence is
      against you and what’s likely and so they could pretty much tell you
      what the likely result is and then you just have to make a judgment.
      And you have made a judgment that you would accept a 15-year
      sentence?
              THE DEFENDANT: Yes.
              ....
              THE COURT: And you are going to plead guilty on that basis;
      is that correct?

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            THE DEFENDANT: Yes.
            THE COURT: All right. Well, that would be in front of Judge
      Story and we’ll try to get it. I’ll give him a call . . . and see if I can
      get him to get you on the calendar quickly.

      After confirming the new date of the hearing and reviewing which motions

would be addressed, Judge Hagy said,

      Mr. Shaw, I know you’ve got not great choices, but sometimes we’ve
      got to make hard choices. And you’ve had good counsel and we’ve
      been at it a long time. So it sounds to me like a reasoned decision and
      one that’s supported by common sense and judgment and so the
      record reflects the guilty plea will have to be redone in front of Judge
      Story.

      Later that day, the parties appeared before District Judge Richard Story for a

change-of-plea hearing. During the colloquy, Judge Story asked, “Aside from the

plea agreement, has anyone threatened or forced you to plead guilty or told you

that if you do not plead guilty, further charges are going to be brought against you

or any other adverse action taken against you?” Shaw replied, “No, other than I’m

going to get a life sentence if I go to trial and be found guilty. I mean, that right

there is about the only thing really pressuring me into taking this plea today.”

Judge Story said, “I understand. You’ve looked at what the potential possibilities

are if you went to trial and were convicted, the sentence you might face; and that’s

what’s caused you to decide to accept this agreement. Is that fair?” Shaw

answered, “That’s part of it, yeah, uh-huh.” He indicated that, otherwise, no

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threats had been made against him.

      During a discussion about the possibility of credit for time served, Shaw

said to the court:

      What I was saying is that, you know, I’ve been locked up for three
      years for something that I didn’t do, a crime that I didn’t commit.
      And it’s been a hard three years on me.
             Mr. Jackson was – stated to Judge Hagy that I was playing the
      games about taking a plea. It’s never been that. It’s that . . . if you
      give me 15 years, then, okay, I’ll take the 15 years. But if you’re not
      giving me [credit] for the [time] I’ve been locked up, it’s like I’m
      getting 18 years.

The court stated that it would review the matter before sentencing. After Jackson

recited the factual basis for the plea, Shaw stated that he admitted to possessing

powder cocaine that he planned to distribute, but not that he conspired with others.

Judge Story reiterated that Shaw was charged with a conspiracy, which required

him to have been working with someone else in possessing the cocaine with intent

to distribute. Shaw then confirmed that he worked with others in order to

accomplish the cocaine possession. During discussion of the sentence appeal

waiver in the plea agreement, Jackson reiterated that the plea agreement would be

void and the parties would “go back to square one” if Shaw were to receive other

than a 15-year sentence.

      Judge Story accepted Shaw’s plea and adjudged him guilty. At the



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sentencing hearing in February 2010, he stated that his intention was to impose a

180-month sentence, but because Shaw had already been detained for 40 months,

he ordered Shaw to serve 140 months’ imprisonment with no additional credit for

time served. Judge Story further indicated that he had received several

communications from Shaw over the previous few months in which Shaw

expressed reservations about the plea. He asked whether Shaw wanted to raise

any of those concerns before the sentence was imposed, but Shaw said that he did

not. Accordingly, the court imposed the sentence.

                                         II.

      Where, as here, the defendant did not raise any objections related to his

guilty plea, we review for plain error. See United States v. Mosley, 

,

1322 (11th Cir. 1999). A guilty plea must be free from coercion. Fed.R.Crim.P.

11(b)(2). Accordingly, while the government and the defense may discuss and

reach a plea agreement, “[t]he court must not participate in these discussions.”

Rule 11(c)(1). Rule 11(c)(1) is “an absolute prohibition on all forms of judicial

participation in or interference with the plea negotiation process.” United States v.

Corbitt, 

, 1134 (11th Cir. 1993) (discussing the former Rule

11(e)(1), which was renumbered in 2002 without relevant textual changes).

Judicial participation in plea discussions is plain error, and a defendant who has

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pled guilty after a judge participated in the discussions should be allowed to

replead without showing actual prejudice. 

“it is clear that the . . .

judge . . . was motivated primarily by the concern that [the defendant] be

thoroughly apprised of the situation that he faced, Rule 11[(c)(1)] requires that this

concern, however well-intentioned, be addressed by someone other than the

judge.” United States v. Casallas, 

, 1178 (11th Cir. 1995). Where

the judge does “nothing flagrant,” but merely indicates that the defendant is likely

to receive a heavy sentence and should think carefully about the prosecution’s

offer, the comments still violate Rule 11(c)(1) and the conviction must be

reversed. 

.

      Here, Judge Hagy explicitly told Shaw that he had to choose between the

government’s 15-year offer and the possibility of a life sentence. He also

emphasized the government’s suggestion that additional charges would be brought

against Shaw if Shaw refused the offer. He told the parties that he would not

accept any further delays in the proceedings, he asked whether Shaw would

commit at that time to entering a guilty plea, and he offered to call Judge Story in

order to expedite the change-of-plea hearing. Shaw agreed to plead on the ground

that his “back [was] against the wall.” Furthermore, when he pled guilty before

Judge Story a few hours later, he made comments suggesting that his decision was

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directly influenced by the events in Judge Hagy’s courtroom, and he appears to

have contacted Judge Story between the change-of-plea hearing and the

sentencing hearing expressing reservations about the plea. Judge Hagy’s

comments plainly were improper, and, thus, Shaw’s conviction must be vacated.

.

      A case such as this requires reassignment to another judge on remand, even

if there is no evidence that the judge is vindictive or biased. 

instruct the district court to reassign Shaw’s case to different district and

magistrate judges on remand. In doing so, we do not suggest that Judge Hagy’s

comments were other than well-intentioned, and we have no reason to believe that

Judge Story was aware of the events that took place in Judge Hagy’s courtroom.

Reassignment of the case is merely intended to “extend the prophylactic scheme,”

ensure a clean proceeding, and avoid any possible misimpression created by the

judges’ continued participation in the case. See 

foregoing reasons, we vacate Shaw’s conviction and remand for

further proceedings, with instructions to reassign the case to different magistrate

and district judges on remand.

      VACATED AND REMANDED WITH INSTRUCTIONS.




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