Argued October 30, 2014.
Appeals from the United States District Court for the District of Maryland, at Greenbelt. (8:13-cr-00121-PJM-1; 8:12-cr-00379-PJM-1). Peter J. Messitte, Senior District Judge.
Byron Brandon Warnken, Jr., WARNKEN, LLC, Pikesville, Maryland, for Appellant.
Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Byron L. Warnken, WARNKEN, LLC, Pikesville, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges. WILKINSON, Circuit Judge, concurring.
DIANA GRIBBON MOTZ, Circuit Judge:
Oluwaseun Sanya contends that his guilty plea to access-device fraud and aggravated identity theft was involuntary because the district court impermissibly participated in plea negotiations. We agree that the district court committed reversible error and so vacate and remand for further proceedings.
In July 2012, Sanya pleaded guilty to one count of conspiracy to commit access-device fraud in violation of 18 U.S.C. § 1029(b)(2). As early as 2010, Sanya had begun operation of a large-scale credit card fraud scheme. He recruited employees of various restaurants and other businesses to steal customers' credit card information by using an electronic device that he provided. With this stolen credit card information, Sanya made counterfeit credit cards, which co-conspirators then used to purchase gift cards. The fraudulently purchased, but otherwise legitimate, gift cards were then used to buy consumer goods that the co-conspirators later returned for cash. In this way, Sanya used the stolen credit cards to amass substantial amounts of money.
After his July 2012 plea, Sanya was released pending sentencing under several conditions, including that he commit no further crimes. Unfortunately, upon his release, Sanya promptly resumed operation of his credit card fraud scheme. Indeed, in September 2012 -- a mere six weeks after his release -- security officials at a store
in Abingdon, Maryland, noticed the suspicious behavior of Sanya's co-conspirators and called the local police. Officers responded to the scene, arrested Sanya, and after an investigation, charged him with numerous state crimes and retained him in state custody. When federal officials learned of Sanya's arrest, he was transferred to federal custody, and the state charges were dismissed. On March 13, 2013, a federal grand jury indicted Sanya of access-device fraud and other charges, including aggravated identity theft.
Sanya's sentencing for the initial access-device fraud offense -- to which he had pleaded guilty in July -- was postponed while the Government and Sanya's counsel attempted to negotiate a plea that would resolve the second offenses and consolidate all of Sanya's offenses for sentencing. Sanya, however, rejected the Government's offer, and at the time of his May 2013 detention hearing on the second offenses, the parties had failed to reach any plea agreement.
Learning of Sanya's intransigence at that detention hearing, the district judge expressed his strong preference that Sanya enter a plea to the second set of charges and agree to have those charges and the initial access-device fraud charge consolidated for sentencing. In so doing, the court repeatedly opined that such a plea would be beneficial to Sanya's interests. After hearing the judge's exhortations, Sanya changed course and expressed a willingness to work toward such a result.
Five days later, Sanya executed a plea agreement covering the second set of charges. The plea was entered the next month, before the same district judge, with Sanya pleading guilty to one count of access-device fraud in violation of 18 U.S.C. § 1029(a)(2), as well as one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. These charges were then consolidated with the initial access-device charge for sentencing. At the consolidated sentencing hearing, before the same district judge, the court sentenced Sanya to 90 months' imprisonment for the single initial count of conspiracy to commit device fraud; 188 months for the September count of device fraud, to be served concurrently with the 90-month sentence; and 24 months for the September count of aggravated identity theft, to be served consecutively, for a total of 212 months' imprisonment. Sanya timely noted this appeal.
Sanya contends that, in violation of Federal Rule of Criminal Procedure 11(c)(1), the district court improperly participated in plea discussions, rendering his plea to the September crimes invalid.
Rule 11(c) provides that " [a]n attorney for the government and the defendant's attorney . . . may discuss and reach a plea agreement," but " [t]he court must not participate in these discussions." Fed. R. Crim. P. 11(c)(1). This prohibition on judicial involvement serves " three principal interests: it diminishes the possibility of judicial coercion of a guilty plea; it protects against unfairness and partiality in the judicial process; and it eliminates the misleading impression that the judge is an advocate for the agreement rather than a neutral arbiter." United States v. Bradley, 455 F.3d 453, 460 (2006) (quoting United States v. Cannady, 283 F.3d 641, 644-45 (4th Cir. 2002)) (internal quotation marks omitted).
Because Sanya neither objected to the judge's involvement in plea discussions, nor made an attempt to withdraw his guilty plea, we consider his appellate argument under the rigorous plain error standard. See Uni ...