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US v. Davila: Can a Judge Advise a Defendant to Go to the Cross?

By Robyn Hagan Cain on April 10, 2013 | Last updated on March 21, 2019

Anthony Davila pleaded guilty to conspiracy to defraud the U.S. by obtaining false tax refunds. But he didn’t really want to plead guilty. He actually wanted a new lawyer.

Davila asked a magistrate judge to discharge his court-appointed attorney because that counsel had not discussed any strategies except a guilty plea. The judge told Davila that sometimes, pleading was the best option.

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.

So Davila admitted fessed up. After getting a 115-month sentence, he reconsidered and appealed.

Davila argued 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. (Specifically, he complained about the judge's comments on the weight of the evidence and suggestion that a plea would yield a more favorable sentence he would receive if he stood trial and was found guilty.)

Though Davila didn't object to the judge's comments, he asserted that he was entitled to the vacatur because there was "no question" that the comments violated his substantial rights and undermined the integrity of the proceedings.

The Eleventh Circuit Court of Appeals -- which, unlike other circuits, does not recognize harmless error in the context of judicial participation -- agreed with Davila that the comments amounted to judicial participation in plea discussions in violation of Rule 11. The Supreme Court granted certiorari to resolve the split and decide whether any degree of judicial participation warrants vacatur of a guilty plea.

How do you feel about court commentary regarding guilty pleas? Even if the Court recognizes some level of harmless error regarding judicial participation, it seems that a judge telling a defendant, "believe me, you need a sentence reduction for acceptance" warrants vacatur. Does Davila win either way? We'll get an idea about the Supreme Court's thoughts on the issue Monday, when the Justices hear his case.

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