Appeals from the United States District Court for the Southern District of Georgia D.C. Docket No. 1:09-cr-00060-JRH-WLB-1
U.S. COURT OFAPPEALS ELEVENTH CIRCUIT
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
Anthony Davila appeals following his conviction for conspiracy to defraud the United States by obtaining false tax refunds, 18 U.S.C. § 286.*fn1 During a February 2010 hearing before a magistrate judge, Davila requested the discharge of his court-appointed attorney, expressing a concern that counsel had not discussed any pertinent strategies with him except to plead guilty. The magistrate judge responded that "there may not be viable defenses to these charges," and that pleading guilty sometimes was the best advice an attorney could provide his client. The magistrate judge proceeded to inform Davila that:
The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you've got to go to the cross.
You've got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and believe me, Mr.
Davila, someone with your criminal history needs a three-level reduction for acceptance.
In May 2010, Davila entered a plea of guilty before the district court, and on November 15, 2010, the court sentenced him to 115 months' imprisonment.
On appeal, Davila argues that the magistrate judge's comments at the in camera hearing amounted to improper participation in his plea discussions, requiring that his conviction be vacated. Davila specifically asserts that the magistrate judge commented on the weight of the evidence against him and suggested that a plea would result in a sentence more favorable than the sentence he would receive if he stood trial and was found guilty. He also asserts that he was entitled to the vacatur of his conviction despite his failure to object to the magistrate judge's comments because there was "no question" that the comments violated his substantial rights and undermined the integrity of the proceedings.
Where, as here, the defendant fails to object to an asserted Rule 11 violation before the district court, we review the alleged violation for plain error. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). Under the plain error standard, the defendant ordinarily must show that: (1) error existed (2) the error was plain, and (3) it affected the defendant's substantial rights; and ...