United States v. Kyle, 12-10208 (10-30-13) (Marshall, Sr. D.J., with Berzon and Bybee).

Imagine a court looking at a plea agreement, indicating she will reject the terms, but then musing that if the sentence, was say, 60 months rather than 30, because of various factors and reasons, well maybe the court will accept it. Has the court engaged in plea negotiations which violate Fed R Crim P 11(c)(1)(C)? In this case, the 9th indicates that it does, and under a plain error standard. The defendant here pled to child porn charges. The first plea was to 360 months. The court rejected, and then the court indicated that it would consider a plea that would be less than life, and explained his reasoning. Under a second plea, the defendant got 450 months.

The 9th found plain error in the court's musings about factors involved, and hypothetically what a sentence might be. This put pressure on the defendant. The 9th also found that there was no invited error in counsel wondering possibly if the court would take any plea. The 9th stressed that the court impermissibly and prejudicially engaged in plea negotiations when the court encourages a defendant to plead guilty or commits itself to a sentence of a certain level of severity. The 9th joins with the 5th and 7th circuits in such clarity. The court simply cannot apply any pressure or give any indication that it would commit to a sentence.

The 9th also applied United States v. Davila, 133 S. Ct 2139 (2013) which rejected the automatic vacation of the plea, and instead looked at the whole record to see if the defendant was prejudiced. That is, would the defendant not have agreed to the plea under a reasonable probability absent the court's remarks.

The case is remanded to a different judge.

This is a reminder about the court's role, which is none, in plea negotiations. Asking the court, after a rejection, what the court would accept, is a violation.