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Sunday, June 16, 2013

Federal Rule of Criminal Procedure 11 governs guilty pleas. Rule 11(c)(1) instructs that “[t]he court must not participate in [plea] discussions,” and Rule 11(h) states that a “variance from the requirements of th[e] rule is harmless error if it does not affect substantial rights.” Rule 52(a), which covers trial court errors generally, similarly prescribes: “Any error . . . that does not affect substantial rights must be disregarded.” Respondent Davila, while under indictment on multiple tax fraud charges, wrote to the District Court, expressing dissatisfaction with his court-appointed attorney. Complaining that his attorney offered no defensive strategy, but simply advised him to plead guilty, Davila requested new counsel. A Magistrate Judge held an in camera hearing at which Davila and his attorney, but no representative of the United States, appeared. At the hearing, the Magistrate Judge told Davila that he would not get another court-appointed attorney and that his best course, given the strength of the Government’s case, was to plead guilty. More than three months later, Davila pleaded guilty to a conspiracy charge in exchange for dismissal of 33 other charges. He stated under oath before a U. S. District Judge that he had not been forced or pressured to enter the plea, and he did not mention the in camera hearing before the Magistrate Judge. Prior to sentencing, however, Davila moved to vacate his plea and dismiss the indictment, asserting that he had entered the plea for a “strategic” reason, i.e., to force the Government to acknowledge errors in the indictment. Finding that Davila’s plea had been knowing and voluntary, the District Judge denied the motion. Again, Davila said nothing of the in camera hearing conducted by the Magistrate Judge. On appeal, the Eleventh Circuit, following Circuit precedent, held that 2 UNITED STATES v. DAVILA Syllabus the Magistrate Judge’s violation of Rule 11(c)(1) required automatic vacatur of Davila’s guilty plea, obviating any need to inquire whether the error was prejudicial. Held: Under Rule 11(h), vacatur of the plea is not in order if the record shows no prejudice to Davila’s decision to plead guilty. Pp. 7–14. (a) Rule 11(c)(1)’s prohibition of judicial involvement in plea discussions was included in the 1974 Amendment to the Rule out of concern that a defendant might be induced to plead guilty rather than risk antagonizing the judge who would preside at trial. Rule 11(h) was added in the 1983 Amendment to make clear that Rule 11 errors are not excepted from Rule 52(a)’s harmless-error inquiry. Rule 52 also states, in subsection (b), that a “plain error that affects substantial rights may be considered even though it was not brought to the [trial] court’s attention.” When Rule 52(a) governs, the prosecution has the burden of showing harmlessness, but when Rule 52(b) controls, the defendant must show that the error affects substantial rights. See United States v. Vonn, 535 U. S. 55, 62. As clarified in Vonn and United States v. Dominguez Benitez, 542 U. S. 74, Rule 11 error may be of the Rule 52(a) type or the Rule 52(b) kind, depending on when the error was raised. In Vonn, the judge who conducted the plea hearing failed to inform the defendant, as required by Rule 11(c)(3), that he would have “the right to the assistance of counsel” if he proceeded to trial. The defendant first objected to the omission on appeal. This Court held that “a silent defendant has the burden to satisfy [Rule 52(b)’s] plain-error rule.” 535 U. S., at 59. In Dominguez Benitez, the error first raised on appeal was failure to warn the defendant, as Rule 11(c)(3)(B) instructs, that a plea could not be withdrawn even if the sentence imposed was higher than the plea-bargained sentence recommendation. The Court again held that Rule 52(b) controlled, and prescribed the standard a defendant silent until appeal must meet to show “plain error,” namely, “a reasonable probability that, but for the [Rule 11] error, he would not have entered the plea.” 542 U. S., at 83. Pp. 7–9. (b) Here, the Magistrate Judge plainly violated Rule 11(c)(1) by exhorting Davila to plead guilty. Davila contends that automatic vacatur, while inappropriate for most Rule 11 violations, should attend conduct banned by Rule 11(c)(1). He distinguishes plea-colloquy omissions, i.e., errors of the kind involved in Vonn and Dominguez Benitez, from pre-plea exhortations to admit guilt. The former come into play after a defendant has decided to plead guilty, the latter, before a defendant has decided to plead guilty or to stand trial. Nothing in Rule 11’s text, however, indicates that the ban on judicial involvement in plea discussions, if dishonored, demands automatic vacatur without regard to case-specific circumstances. Nor does the Advisory Cite as: 569 U. S. ____ (2013) 3 Syllabus Committee commentary single out any Rule 11 instruction as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription (or, absent prompt objection, the plain-error rule). Rule 11(c)(1) was adopted as a prophylactic measure, not one impelled by the Due Process Clause or any other constitutional requirement. Thus, violation of the Rule does not belong in the highly exceptional category of structural errors—e.g., denial of counsel of choice or denial of a public trial—that trigger automatic reversal because they undermine the fairness of the entire criminal proceeding. United States v. Marcus, 560 U. S. 258, ___. Instead, in assessing Rule 11 errors, a reviewing court must take account of all that transpired in the trial court. Had Davila’s guilty plea followed soon after the Magistrate Judge’s comments, the automatic-vacatur rule would have remained erroneous. The Court of Appeals’ mistake in that regard, however, might have been inconsequential, for the Magistrate Judge’s exhortations, if they immediately elicited a plea, would likely have qualified as prejudicial. Here, however, three months distanced the in camera meeting conducted by the Magistrate Judge from Davila’s appearance before the District Judge who examined and accepted his guilty plea after an exemplary Rule 11 colloquy, at which Davila had the opportunity to raise any questions he might have about matters relating to his plea. The Court of Appeals, therefore, should not have assessed the Magistrate Judge’s comments in isolation. Instead, it should have considered, in light of the full record, whether it was reasonably probable that, but for the Magistrate Judge’s comments, Davila would have exercised his right to go to trial. Pp. 10– 14. (c) The Court of Appeals, having concluded that the Magistrate Judge’s comments violated Rule 11(c)(1), cut off further consideration. It did not engage in a full-record assessment of the particular facts of Davila’s case or the case-specific arguments raised by the parties, including the Government’s assertion that Davila was not prejudiced by the Magistrate Judge’s comments, and Davila’s contention that the extraordinary circumstances his case presents should allow his claim to be judged under Rule 52(a)’s harmless-error standard rather than Rule 52(b)’s plain-error standard. The Court decides only that the automatic-vacatur rule is incompatible with Rule 11(h) and leaves all remaining issues to be addressed on remand. P. 14. 664 F. 3d 1355, vacated and remanded.

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. DAVILA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 12–167. Argued April 15, 2013—Decided June 13, 2013
Federal Rule of Criminal Procedure 11 governs guilty pleas. Rule
11(c)(1) instructs that “[t]he court must not participate in [plea] discussions,” and Rule 11(h) states that a “variance from the requirements of th[e] rule is harmless error if it does not affect substantial
rights.” Rule 52(a), which covers trial court errors generally, similarly prescribes: “Any error . . . that does not affect substantial rights
must be disregarded.”
Respondent Davila, while under indictment on multiple tax fraud
charges, wrote to the District Court, expressing dissatisfaction with
his court-appointed attorney. Complaining that his attorney offered
no defensive strategy, but simply advised him to plead guilty, Davila
requested new counsel. A Magistrate Judge held an in camera hearing at which Davila and his attorney, but no representative of the
United States, appeared. At the hearing, the Magistrate Judge told
Davila that he would not get another court-appointed attorney and
that his best course, given the strength of the Government’s case,
was to plead guilty. More than three months later, Davila pleaded
guilty to a conspiracy charge in exchange for dismissal of 33 other
charges. He stated under oath before a U. S. District Judge that he
had not been forced or pressured to enter the plea, and he did not
mention the in camera hearing before the Magistrate Judge. Prior to
sentencing, however, Davila moved to vacate his plea and dismiss the
indictment, asserting that he had entered the plea for a “strategic”
reason, i.e., to force the Government to acknowledge errors in the indictment. Finding that Davila’s plea had been knowing and voluntary, the District Judge denied the motion. Again, Davila said nothing of the in camera hearing conducted by the Magistrate Judge. On
appeal, the Eleventh Circuit, following Circuit precedent, held that 2 UNITED STATES v. DAVILA
Syllabus
the Magistrate Judge’s violation of Rule 11(c)(1) required automatic
vacatur of Davila’s guilty plea, obviating any need to inquire whether
the error was prejudicial.
Held: Under Rule 11(h), vacatur of the plea is not in order if the record
shows no prejudice to Davila’s decision to plead guilty. Pp. 7–14.
(a) Rule 11(c)(1)’s prohibition of judicial involvement in plea discussions was included in the 1974 Amendment to the Rule out of concern that a defendant might be induced to plead guilty rather than
risk antagonizing the judge who would preside at trial. Rule 11(h)
was added in the 1983 Amendment to make clear that Rule 11 errors
are not excepted from Rule 52(a)’s harmless-error inquiry. Rule 52
also states, in subsection (b), that a “plain error that affects substantial rights may be considered even though it was not brought to the
[trial] court’s attention.” When Rule 52(a) governs, the prosecution
has the burden of showing harmlessness, but when Rule 52(b) controls, the defendant must show that the error affects substantial
rights. See United States v. Vonn, 535 U. S. 55, 62.
As clarified in Vonn and United States v. Dominguez Benitez, 542
U. S. 74, Rule 11 error may be of the Rule 52(a) type or the Rule 52(b)
kind, depending on when the error was raised. In Vonn, the judge
who conducted the plea hearing failed to inform the defendant, as required by Rule 11(c)(3), that he would have “the right to the assistance of counsel” if he proceeded to trial. The defendant first objected
to the omission on appeal. This Court held that “a silent defendant
has the burden to satisfy [Rule 52(b)’s] plain-error rule.” 535 U. S., at
59. In Dominguez Benitez, the error first raised on appeal was failure
to warn the defendant, as Rule 11(c)(3)(B) instructs, that a plea could
not be withdrawn even if the sentence imposed was higher than the
plea-bargained sentence recommendation. The Court again held that
Rule 52(b) controlled, and prescribed the standard a defendant silent
until appeal must meet to show “plain error,” namely, “a reasonable
probability that, but for the [Rule 11] error, he would not have entered the plea.” 542 U. S., at 83. Pp. 7–9.
(b) Here, the Magistrate Judge plainly violated Rule 11(c)(1) by exhorting Davila to plead guilty. Davila contends that automatic vacatur, while inappropriate for most Rule 11 violations, should attend
conduct banned by Rule 11(c)(1). He distinguishes plea-colloquy
omissions, i.e., errors of the kind involved in Vonn and Dominguez
Benitez, from pre-plea exhortations to admit guilt. The former come
into play after a defendant has decided to plead guilty, the latter, before a defendant has decided to plead guilty or to stand trial. Nothing
in Rule 11’s text, however, indicates that the ban on judicial involvement in plea discussions, if dishonored, demands automatic vacatur
without regard to case-specific circumstances. Nor does the Advisory Cite as: 569 U. S. ____ (2013) 3
Syllabus
Committee commentary single out any Rule 11 instruction as more
basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription (or, absent prompt objection, the plain-error
rule).
Rule 11(c)(1) was adopted as a prophylactic measure, not one impelled by the Due Process Clause or any other constitutional requirement. Thus, violation of the Rule does not belong in the highly
exceptional category of structural errors—e.g., denial of counsel of
choice or denial of a public trial—that trigger automatic reversal because they undermine the fairness of the entire criminal proceeding.
United States v. Marcus, 560 U. S. 258, ___. Instead, in assessing
Rule 11 errors, a reviewing court must take account of all that transpired in the trial court. Had Davila’s guilty plea followed soon after
the Magistrate Judge’s comments, the automatic-vacatur rule would
have remained erroneous. The Court of Appeals’ mistake in that regard, however, might have been inconsequential, for the Magistrate
Judge’s exhortations, if they immediately elicited a plea, would likely
have qualified as prejudicial. Here, however, three months distanced
the in camera meeting conducted by the Magistrate Judge from Davila’s appearance before the District Judge who examined and accepted
his guilty plea after an exemplary Rule 11 colloquy, at which Davila
had the opportunity to raise any questions he might have about matters relating to his plea. The Court of Appeals, therefore, should not
have assessed the Magistrate Judge’s comments in isolation. Instead, it should have considered, in light of the full record, whether it
was reasonably probable that, but for the Magistrate Judge’s comments, Davila would have exercised his right to go to trial. Pp. 10–
14.
(c) The Court of Appeals, having concluded that the Magistrate
Judge’s comments violated Rule 11(c)(1), cut off further consideration. It did not engage in a full-record assessment of the particular
facts of Davila’s case or the case-specific arguments raised by the
parties, including the Government’s assertion that Davila was not
prejudiced by the Magistrate Judge’s comments, and Davila’s contention that the extraordinary circumstances his case presents should
allow his claim to be judged under Rule 52(a)’s harmless-error standard rather than Rule 52(b)’s plain-error standard. The Court decides
only that the automatic-vacatur rule is incompatible with Rule 11(h)
and leaves all remaining issues to be addressed on remand. P. 14.
664 F. 3d 1355, vacated and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. 4 UNITED STATES v. DAVILA
Syllabus
SCALIA, J., filed an opinion concurring in part and concurring in the
judgment, in which THOMAS, J., joined. _________________
_________________
Cite as: 569 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 12–167
UNITED STATES, PETITIONER v. ANTHONY DAVILA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 13, 2013]
JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns Rule 11 of the Federal Rules of Criminal Procedure, which governs guilty pleas. Two provisions of that rule are key here. The first, Rule 11(c)(1),
instructs that “[t]he court must not participate in [plea]
discussions.” The second, Rule 11(h), states: “A variance
from the requirements of th[e] rule is harmless error if
it does not affect substantial rights.” Rule 52(a), which
covers trial court errors generally, similarly prescribes:
“Any error . . . that does not affect substantial rights must
be disregarded.”
Anthony Davila, respondent here, entered a guilty plea
to conspiracy to defraud the United States by filing false
income tax returns. He maintains that he did so because
a U. S. Magistrate Judge, at a pre-plea in camera hearing
and in flagrant violation of Rule 11(c)(1), told him his best
course, given the strength of the Government’s case, was
to plead guilty. Three months later, Davila entered a plea
on advice of counsel. The hearing on Davila’s plea, conducted by a U. S. District Judge, complied in all respects
with Rule 11.
The question presented is whether, as the Court of 2 UNITED STATES v. DAVILA
Opinion of the Court
Appeals for the Eleventh Circuit held, the violation of Rule
11(c)(1) by the Magistrate Judge warranted automatic
vacatur of Davila’s guilty plea. We hold that Rule 11(h)
controls. Under the inquiry that Rule instructs, vacatur of
the plea is not in order if the record shows no prejudice to
Davila’s decision to plead guilty.
I
In May 2009, a federal grand jury in the Southern District of Georgia returned a 34-count indictment against
respondent Anthony Davila. The indictment charged that
Davila filed over 120 falsified tax returns, receiving over
$423,000 from the United States Treasury as a result of
his fraudulent scheme.
In January 2010, Davila sent a letter to the District
Court expressing dissatisfaction with his court-appointed
attorney and requesting new counsel. His attorney, Davila
complained, offered no defensive strategy, “‘never mentioned a defense at all,’” but simply advised that he plead
guilty.1 In response to Davila’s letter, a U. S. Magistrate
Judge held an in camera hearing at which Davila and
his attorney, but no representative of the United States,
appeared. At the start of the hearing, the Magistrate
Judge told Davila that he was free to represent himself,
but would not get another court-appointed attorney. See
App. 148.
Addressing Davila’s complaint that his attorney had
advised him to plead guilty, the Magistrate Judge told
Davila that “oftentimes . . . that is the best advice a lawyer
can give his client.” Id., at 152. “In view of whatever the
Government’s evidence in a case might be,” the judge
continued,
“it might be a good idea for the Defendant to accept
——————
1
See Brief for Appellee in No. 10–15319–I (CA11), p. 3 (quoting Record (Exh. B)). Cite as: 569 U. S. ____ (2013) 3
Opinion of the Court
responsibility for his criminal conduct[,] to plead
guilty[,] and go to sentencing with the best arguments
. . . still available [without] wasting the Court’s time,
[and] causing the Government to have to spend a
bunch of money empanelling a jury to try an open and
shut case.” Ibid.
As to Davila’s objection that his attorney had given him
no options other than pleading guilty, the Magistrate
Judge commented: “[T]here may not be a viable defense to
these charges.” Id., at 155. The judge then urged Davila
to cooperate in order to gain a downward departure from
the sentence indicated by the Federal Sentencing Guidelines. “[T]ry to understand,” he counseled,
“the Government, they have all of the marbles in this
situation and they can file that . . . motion for [a]
downward departure from the guidelines if they want
to, you know, and the rules are constructed so that
nobody can force them to file that [motion] for you.
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.” Id.,
at 159–160.
Davila’s Sentencing Guidelines range, the Magistrate
Judge said, would “probably [be] pretty bad because [his]
criminal history score would be so high.” Id., at 160. To
reduce his sentencing exposure, the Magistrate Judge
suggested, Davila could “cooperate with the Government
in this or in other cases.” Ibid. As the hearing concluded,
the judge again cautioned that “to get the [sentence] re-4 UNITED STATES v. DAVILA
Opinion of the Court
duction for acceptance [of responsibility],” Davila had to
“come to the cross”:
“[T]hat two- or three-level reduction for acceptance is
something that you have the key to and you can ensure that you get that reduction in sentence simply by
virtue of being forthcoming and not trying to make
yourself look like you really didn’t know what was going on. . . . You’ve got to go [to the cross] and you’ve
got to tell it all, Brother, and convince that probation
officer that you are being as open and honest with him
as you can possibly be because then he will go to the
[D]istrict [J]udge and he will say, you know, that
Davila guy, he’s got a long criminal history but when
we were in there talking about this case he gave it all
up so give him the two-level, give him the three-level
reduction.” Id., at 160–161.
Nearly a month after the in camera hearing, Davila filed
a motion demanding a speedy trial. The District Court set
a trial date for April 2010, which was continued at the
Government’s request.
In May 2010, more than three months after the hearing
before the Magistrate Judge, Davila agreed to plead guilty
to the conspiracy charge in exchange for dismissal of the
other 33 counts charged in the indictment. Davila entered
his guilty plea before a U. S. District Judge six days later.
Under oath, Davila stated that he had not been forced
or pressured to plead guilty. Id., at 122. Davila did not
mention the in camera hearing before the Magistrate
Judge, and the record does not indicate whether the District Judge was aware that the pre-plea hearing had taken
place. See id., at 82–99, 115–125.
Before he was sentenced, Davila moved to vacate his
plea and to dismiss the indictment. The reason for his
plea, Davila asserted, was “strategic.” Id., at 58. Aware
that the prosecutor had a duty to disclose all information Cite as: 569 U. S. ____ (2013) 5
Opinion of the Court
relevant to the court’s determination whether to accept
the plea bargain, he stated that his purpose in entering
the plea was to force the Government to acknowledge
timeframe errors made in the indictment. Id., at 58–59.
By pleading guilty, Davila said, he would make the court
aware that the prosecution was “vindictive.” Id., at 59.
The District Judge denied Davila’s motion. In so ruling,
the court observed that, at the plea hearing, Davila had
affirmed that he was under no “pressure, threats, or promises, other than promises [made] by the government in the
plea agreement.” Id., at 70. Furthermore, he had been
fully advised of his rights and the consequences of his
plea. Id., at 71. It was therefore clear to the District
Judge, who had himself presided at the plea hearing, that
Davila’s guilty plea “was knowing and voluntary.” Id., at
72. In view of Davila’s extensive criminal history, the
court sentenced him to a prison term of 115 months. Id.,
at 75–77. Again, neither Davila nor the court mentioned
the in camera hearing conducted by the Magistrate Judge.
Id., at 55–80.
On appeal, Davila’s court-appointed attorney sought
leave to withdraw from the case, asserting, in a brief filed
pursuant to Anders v. California, 386 U. S. 738 (1967),
that there were no issues of arguable merit to be raised on
Davila’s behalf. The Eleventh Circuit denied counsel’s
motion without prejudice to renewal. App. to Pet. for Cert.
6a–8a. It did so based on a discovery the appeals court
made upon “independent review” of the record. That
review “revealed an irregularity in the statements of a
magistrate judge, made during a hearing prior to Davila’s
plea, which appeared to urge [him] to cooperate and be
candid about his criminal conduct to obtain favorable
sentencing consequences.” Id., at 7a. The court requested
counsel to address whether the “irregularity” constituted
reversible error under Federal Rule of Criminal Procedure
11(c)(1). Id., at 7a–8a. 6 UNITED STATES v. DAVILA
Opinion of the Court
Following the court’s instruction, counsel filed a brief
arguing that Davila’s plea should be set aside due to the
Magistrate Judge’s comments. In response, the Government conceded that those comments violated Rule 11(c)(1).
Even so, the Government urged, given the three-month
gap between the comments and the plea, and the fact that
a different judge presided over Davila’s plea and sentencing hearings, no adverse effect on Davila’s substantial
rights could be demonstrated. Pursuant to Circuit precedent, the appeals court held that the Rule 11(c)(1) violation required automatic vacatur of Davila’s guilty plea.
Under the Circuit’s “bright line rule,” the court explained,
there was no need to inquire whether the error was, in
fact, prejudicial. 664 F. 3d 1355, 1359 (CA11 2011)
(per curiam).
We granted certiorari to resolve a Circuit conflict concerning the consequences of a Rule 11(c)(1) violation. 568
U. S. ___ (2013).2
——————
2
Compare United States v. Bradley, 455 F. 3d 453, 461 (CA4 2006)
(Rule 11(c) errors are not structural and are subject to plain-error
review); United States v. Pagan-Ortega, 372 F. 3d 22, 27–28 (CA1 2004)
(“[A] facially appealing claim of improper judicial participation in a plea
proceeding prior to its solemnization in writing did not, on close analysis, demonstrate a basic unfairness and lack of integrity in the proceeding.”); United States v. Ebel, 299 F. 3d 187, 191 (CA3 2002) (“[W]hen
Rule 11 error has been committed in the taking of a guilty plea, we can
consider the record as a whole to determine whether, under Rule 11(h),
[the defendant’s] substantial rights were affected.”); United States v.
Kraus, 137 F. 3d 447, 457–458 (CA7 1998) (applying harmless-error
review); and United States v. Miles, 10 F. 3d 1135, 1140–1141 (CA5
1993) (“Rule 11(h) . . . compel[s] harmless error review.”), with 664
F. 3d 1355 (CA11 2011) (this case); United States v. Anderson, 993 F. 2d
1435, 1438–1439 (CA9 1993) (“Rule 11’s ban [on judicial involvement in
plea negotiations is] an absolute command which admits of no exceptions.” (internal quotation marks omitted)); and United States v.
Barrett, 982 F. 2d 193, 196 (CA6 1992) (“This court’s role is not to weigh
the judge’s statements to determine whether they were so oppressive as
to abrogate the voluntariness of the plea.”). Cite as: 569 U. S. ____ (2013) 7
Opinion of the Court
II
Rule 11(c)(1)’s prohibition of judicial involvement in plea
discussions was introduced as part of the 1974 Amendment to the Rule. See Advisory Committee’s 1974 Note on
Subd. (e)(1) of Fed. Rule Crim. Proc. 11, 18 U. S. C. App.,
p. 1420 (1976 ed.) (hereinafter Advisory Committee’s 1974
Note).3
 As the Advisory Committee’s note explains, commentators had observed, prior to the amendment, that
judicial participation in plea negotiations was “common
practice.” Id., at 1420 (citing D. Newman, Conviction: The
Determination of Guilt or Innocence Without Trial 32–52,
78–104 (1966); Note, Guilty Plea Bargaining: Compromises
by Prosecutors to Secure Guilty Pleas, 112 U. Pa. L.
Rev. 865, 891, 905 (1964)). Nonetheless, the prohibition
was included out of concern that a defendant might be
induced to plead guilty rather than risk displeasing the
judge who would preside at trial. Advisory Committee’s
1974 Note 1420. Moreover, the Advisory Committee anticipated, barring judicial involvement in plea discussions
would facilitate objective assessments of the voluntariness
of a defendant’s plea. Ibid.
Added as a part of the 1983 Amendment, Rule 11(h)
provides that “a variance from the requirements of [Rule
11] is harmless error if it does not affect substantial
rights.” Subsection (h), the Advisory Committee’s note
informs, “rejects the extreme sanction of automatic reversal” for Rule 11 violations and clarifies that Rule 52(a)’s
harmlessness inquiry applies to plea errors. Advisory
Committee’s 1983 Note on Subd. (h) of Fed. Rule Crim.
Proc. 11, 18 U. S. C. App., pp. 749, 751 (1988 ed.) (hereinafter Advisory Committee’s 1983 Note).
The addition of subsection (h) was prompted by lower
——————
3
As originally enacted, the prohibition of court participation in plea
discussions was found in Rule 11(e)(1). See Fed. Rule Crim. Proc.
11(e)(1) (1976). 8 UNITED STATES v. DAVILA
Opinion of the Court
court over-readings of McCarthy v. United States, 394
U. S. 459 (1969). That decision called for vacatur of a
guilty plea accepted by the trial court without any inquiry
into the defendant’s understanding of the nature of the
charge. The Advisory Committee explained that subsection (h) would deter reading McCarthy “as meaning that
the general harmless error provision in Rule 52(a) cannot
be utilized with respect to Rule 11 proceedings.” Advisory
Committee’s 1983 Note 751. Substantial compliance with
Rule 11 would remain the requirement, but the new subsection would guard against exalting “ceremony . . . over
substance.” Id., at 749.
For trial court errors generally, Rule 52(a) states that
“[a]ny error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.” Rule 11(h),
as just noted, was designed to make it clear that Rule 11
errors are not excepted from that general Rule. Advisory
Committee’s 1983 Note 749. Rule 52, in addition to stating the “harmless-error rule” in subsection (a), also states,
in subsection (b), the “plain-error rule,” applicable when a
defendant fails to object to the error in the trial court.
Rule 52(b) states: “A plain error that affects substantial
rights may be considered even though it was not brought
to the [trial] court’s attention.” When Rule 52(a)’s “harmlesserror rule” governs, the prosecution bears the burden of
showing harmlessness. See United States v. Vonn, 535
U. S. 55, 62 (2002). When Rule 52(b) controls, the defendant must show that the error affects substantial rights.
Ibid.
In two cases, United States v. Vonn, 535 U. S. 55, and
United States v. Dominguez Benitez, 542 U. S. 74 (2004),
this Court clarified that a Rule 11 error may be of the Rule
52(a) type, or it may be of the Rule 52(b) kind, depending
on when the error was raised. In Vonn, the judge who
conducted the plea hearing failed to inform the defendant,
as required by Rule 11, that he would have “the right to Cite as: 569 U. S. ____ (2013) 9
Opinion of the Court
the assistance of counsel” if he proceeded to trial. See Fed.
Rule Crim. Proc. 11(c)(3) (2000).4
 The defendant first
objected to the omission on appeal. We addressed the
question “whether a defendant who lets Rule 11 error pass
without objection in the trial court must carry the burdens
of Rule 52(b) or whether even the silent defendant can put
the Government to the burden of proving the Rule 11 error
harmless.” 535 U. S., at 58.
The Defendant in Vonn had urged that “importation of
[Rule 52(a)’s] harmless-error standard into Rule 11(h)
without its companion plain-error rule was meant to eli-
minate a silent defendant’s burdens under . . . Rule 52(b).”
Id., at 63. This Court rejected the defendant’s argu-
ment and held that “a silent defendant has the burden
to satisfy the plain-error rule.” Id., at 59.
 In Dominguez Benitez, the Court addressed what the
silent defendant’s burden entailed. The judge presiding at
the plea hearing in that case failed to warn the defendant,
as Rule 11(c)(3)(B) directs, that he would not be permitted
to withdraw his guilty plea even if the court did not accept the plea-bargained sentencing recommendation. 542
U. S., at 79. As in Vonn, the error was first raised on
appeal. 542 U. S., at 79. This Court again held that Rule
52(b) was controlling. Id., at 82. Stressing “the particular
importance of the finality of guilty pleas,” ibid., the Court
prescribed the standard a defendant complaining of a Rule
11 violation must meet to show “plain error”: “[A] defendant who seeks reversal of his conviction after a guilty plea,
on the ground that the district court committed plain error
under Rule 11, must show a reasonable probability that,
but for the error, he would not have entered the plea.” Id.,
at 83.
——————
4
The requirement that the judge inform the defendant that he has
“the right to be represented by counsel” is currently found in Rule
11(b)(1)(D). 10 UNITED STATES v. DAVILA
Opinion of the Court
III
In Davila’s case, the Government acknowledged in this
Court, as it did before the Eleventh Circuit, that the Magistrate Judge violated Rule 11(c)(1) by improperly participating in plea discussions. As the excerpts from the in
camera hearing, set out supra, at 2–4, show, there is no
room for doubt on that score. The Magistrate Judge’s
repeated exhortations to Davila to “tell it all” in order to
obtain a more favorable sentence, see App. 157–160, were
indeed beyond the pale.
Did that misconduct in itself demand vacatur of Davila’s
plea, as the Eleventh Circuit held, or, as the Government
urges, must a reviewing court consider all that transpired
in the trial court in order to assess the impact of the error
on the defendant’s decision to plead guilty? We hold that
the latter inquiry is the one the Rules and our precedent
require.
Davila contends that automatic vacatur, while inappropriate for most Rule 11 violations, should attend conduct
banned by Rule 11(c)(1). He distinguishes plea-colloquy
omissions, i.e., errors of the kind involved in Vonn and
Dominguez Benitez, from pre-plea exhortations to admit
guilt. Plea-colloquy requirements come into play after a
defendant has agreed to plead guilty. The advice and
questions now specified in Rules 11(b) and 11(c)(3)(B),
Davila observes, are designed to ensure that a defendant’s
plea is fully informed and intelligently made. Errors or
omissions in following Rule 11’s plea-colloquy instructions,
Davila recognizes, are properly typed procedural, and are
therefore properly assessed under the harmless-error
instruction of Rule 11(h).
Rule 11(c)(1)’s prohibition on judicial participation in
plea discussions, in contrast, becomes operative before a
defendant has decided whether to plead guilty or to stand
trial. The Rule serves a more basic purpose, Davila urges,
one “central to the proper functioning of the criminal Cite as: 569 U. S. ____ (2013) 11
Opinion of the Court
process.” Brief for Respondent 18. Therefore, “the remedial analysis that applies to violations of . . . procedural
provisions does not and should not apply to th[is] distinct
class of error.” Id., at 16. Violations of Rule 11(c)(1),
Davila elaborates, heighten the risk that a defendant’s
plea will be coerced or pressured, and not genuinely an
exercise of free will. When a judge conveys his belief that
pleading guilty would be to a defendant’s advantage,
Davila adds, the judge becomes, in effect, a second prosecutor, depriving the defendant of the impartial arbiter to
which he is entitled. “Rule 11(c)(1)’s bright-line prohibition on judicial exhortations to plead guilty,” Davila concludes, is “no mere procedural technicality,” id., at 21, for
such exhortations inevitably and incurably infect the
ensuing pretrial process. Id., at 43.
Nothing in Rule 11’s text, however, indicates that the
ban on judicial involvement in plea discussions, if dishonored, demands automatic vacatur of the plea without
regard to case-specific circumstances. The prohibition
appears in subsection (c), headed “Plea Agreement Procedure.” See Fed. Rule Crim. Proc. 11(c). That subsection
affirms that the prosecution and defense attorney (or the
defendant when proceeding pro se) “may discuss and reach
a plea agreement.” Rule 11(c)(1). Further, Rule 11(c)
describes permissible types of plea agreements, see Rule
11(c)(1)(A)–(C), and addresses the court’s consideration,
acceptance, or rejection of a proffered agreement, see Rule
11(c)(3)–(5).
In recommending the disallowance of judicial participation in plea negotiations now contained in subsection
(c)(1), the Advisory Committee stressed that a defendant
might be induced to plead guilty to avoid antagonizing the
judge who would preside at trial. See Advisory Committee’s 1974 Note 1420. But the Committee nowhere suggested that violation of Rule 11(c)(1) is necessarily an
error graver than, for example, the error in Dominguez 12 UNITED STATES v. DAVILA
Opinion of the Court
Benitez, i.e., the failure to tell a defendant that the plea
would bind him even if the sentence imposed significantly
exceeded in length the term of years stated in the plea
bargain. As earlier noted, see supra, at 7, the Committee
pointed to commentary describing judicial engagement
in plea bargaining as a once “common practice,”5
 and it
observed that, in particular cases, questions may arise
“[a]s to what . . . constitute[s] ‘participation.’” Advisory
Committee’s 1974 Note 1420.
In short, neither Rule 11 itself, nor the Advisory Committee’s commentary on the Rule singles out any instruction as more basic than others. And Rule 11(h), specifically
designed to stop automatic vacaturs, calls for across-theboard application of the harmless-error prescription
(or, absent prompt objection, the plain-error rule). See
supra, at 7–8.
Rule 11(c)(1) was adopted as a prophylactic measure,
see supra, at 7, not one impelled by the Due Process
Clause or any other constitutional requirement. See 664
F. 3d, at 1359 (recognizing that Rule 11(c)(1) is part of a
“prophylactic scheme”). We have characterized as “structural” “a very limited class of errors” that trigger automatic
reversal because they undermine the fairness of a criminal proceeding as a whole. United States v. Marcus, 560
U. S. 258, ___ (2010) (slip op., at 4–5) (internal quotation
marks omitted). Errors of this kind include denial of
counsel of choice, denial of self-representation, denial of a
public trial, and failure to convey to a jury that guilt must
be proved beyond a reasonable doubt. See, e.g., United
States v. Gonzalez-Lopez, 548 U. S. 140, 150 (2006) (ranking “deprivation of the right to counsel of choice” as
——————
5
For state provisions permitting at least some judicial participation
in plea bargaining, see, e.g., N. C. Gen. Stat. Ann. §15A–1021(a) (Lexis
2011); Idaho Crim. Rule 11(f) (2012); Vt. Rule Crim. Proc. 11 Reporter’s
Notes (2003 and Supp. 2012). Cite as: 569 U. S. ____ (2013) 13
Opinion of the Court
“‘structural error’”). Rule 11(c)(1) error does not belong in
that highly exceptional category. See Neder v. United
States, 527 U. S. 1, 7 (1999) (structural errors are “fundamental constitutional errors that ‘defy analysis by “harmless error” standards’” (quoting Arizona v. Fulminante,
499 U. S. 279, 309 (1991)).
Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty might be “the
best advice” a lawyer could give him, see App. 152, this
case may not have warranted our attention. The automaticvacatur rule would have remained erroneous, but the
Court of Appeals’ mistake might have been inconsequential. See Tr. of Oral Arg. 47 (Counsel for the Government
acknowledged that if there is a “serious [Rule 11(c)(1)]
error,” and the defendant pleads guilty “right after that,”
the error would likely qualify as prejudicial). Our essential point is that particular facts and circumstances matter. Three months distanced the in camera meeting with
the Magistrate Judge from Davila’s appearance before the
District Judge who examined and accepted his guilty plea
and later sentenced him. Nothing in the record shows
that the District Judge knew of the in camera hearing.
After conducting an exemplary Rule 11 colloquy, the judge
inquired: “Mr. Davila, has anyone forced or pressured you
to plead guilty today?,” to which Davila responded: “No,
sir.” App. 122. At the time of the plea hearing, there was
no blending of judicial and prosecutorial functions.
Given the opportunity to raise any questions he might
have about matters relating to his plea, Davila simply
affirmed that he wished to plead guilty to the conspiracy
count. When he later explained why he elected to plead
guilty, he said nothing of the Magistrate Judge’s exhortations. Instead, he called the decision “strategic,” designed
to get the prosecutor to correct misinformation about the
conspiracy count. Id., at 58–59, 61. Rather than automatically vacating Davila’s guilty plea because of the Rule 14 UNITED STATES v. DAVILA
Opinion of the Court
11(c)(1) violation, the Court of Appeals should have considered whether it was reasonably probable that, but for
the Magistrate Judge’s exhortations, Davila would have
exercised his right to go to trial. In answering that question, the Magistrate Judge’s comments should be assessed,
not in isolation, but in light of the full record.
IV
The Court of Appeals did not engage in that full-record
assessment here. Rather, the court cut off consideration of
the particular facts of Davila’s case upon concluding that
the Magistrate Judge’s comments violated Rule 11(c)(1).
That pretermission kept the court from reaching casespecific arguments raised by the parties, including the
Government’s assertion that Davila was not prejudiced by
the Magistrate Judge’s comments, and Davila’s contention
that the extraordinary circumstances his case presents
should allow his claim to be judged under the harmlesserror standard of Rule 52(a) rather than the plain-error
standard of Rule 52(b), the rule that ordinarily attends a
defendant’s failure to object to a Rule 11 violation. See
supra, at 8; 664 F. 3d, at 1358 (citing United States v.
Moriarty, 429 F. 3d 1012, 1019 (CA11 2005) (per curiam)).
Having explained why automatic vacatur of a guilty plea
is incompatible with Rule 11(h), see supra, at 11–13 and
this page, we leave all remaining issues to be addressed by
the Court of Appeals on remand.
* * *
The judgment of the Court of Appeals is vacated, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered. SCALIA, J., concurring
_________________
_________________
Cite as: 569 U. S. ____ (2013) 1
Opinion of SCALIA, J.
SUPREME COURT OF THE UNITED STATES
No. 12–167
UNITED STATES, PETITIONER v. ANTHONY DAVILA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 13, 2013]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and concurring in the judgment.
I agree with the Court that a defendant must be prejudiced by a Rule 11(c)(1) error to obtain relief. That is
because the text of Federal Rule of Criminal Procedure
11(h) says exactly that, in words whose meaning is crystal
clear: “Harmless error. A variance from the requirements
of this rule is harmless error if it does not affect substantial rights.” (Emphasis added.) As the Court recognizes, this rule “calls for across-the-board application of the
harmless-error prescription (or, absent prompt objection,
the plain-error rule).” Ante, at 12. That is the beginning
and the end of this case. We should not rely on the notes
of the Advisory Committee to unearth Rule 11’s alleged
design, for “[t]he Committee’s view is not authoritative”
and the text of the Rule conclusively resolves the question
before us. See Black v. United States, 561 U. S. ___, ___
(2010) (SCALIA, J., concurring in part and concurring in
judgment) (slip op., at 1). 

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