US v. John A. Rillo

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00341-WO-1. Copies to all parties and the district court/agency. [999968973]. [15-4082]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4082

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN ADAM RILLO,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00341-WO-1)

Submitted:

October 20, 2016

Decided:

November 16, 2016

Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Cheryl D. Andrews, HOLTON LAW FIRM, PLLC, Winston-Salem, North
Carolina, for Appellant.
Ripley Rand, United States Attorney,
Clifton Thomas Barrett, Michael Francis Joseph, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
John Rillo (“Appellant”) appeals his convictions for
possession

of

pseudoephedrine

with

the

intent

to

manufacture

methamphetamine and possession of firearms in furtherance of a
drug trafficking crime, and his resulting sentence.

Appellant

claims the district court erred in, inter alia, impermissibly
interfering with plea discussions and failing to depart downward
in reaching his sentence.

Finding no error, we affirm.
I.

On June 30, 2014, a grand jury in the Middle District
of

North

Carolina

Appellant,

which

manufacture

of

returned

a

included

four-count

three

methamphetamine,

possession of stolen firearms.

counts
and

one

indictment
related
count

against
to

the

involving

On August 27, 2014, Appellant’s

original counsel filed a motion to withdraw from representation
based

on

Appellant’s

repeatedly-expressed

desire

for

new

counsel.

The district court held a hearing on the motion on

September

3.

During

that

hearing,

Appellant

expressed

his

concerns that his attorney was “openly discussing [his] case
with the district attorney without [his] permission.”

J.A. 17. 1

He also explained that his attorney had asked Appellant if he

1

Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.

2

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would be willing to provide information about other individuals
to the Government.
The district court then asked a series of questions
about the concept of substantial assistance.

The court asked

questions such as, “During your time in custody, have you ever
heard the term ‘substantial assistance’?” and “Nobody in jail
has ever said a word to you about cooperating . . . [w]ith the
Government, substantial assistance, departure, 5K[?]
heard any of those?”

J.A. 21-23.

You ever

Appellant answered that he

had heard the terms but did not know what they meant.

The court

then

asked

if

have

you

asked

[Appellant]

defense
would

counsel,

be

“[H]as

interested

in

the

Government

cooperating,

or

explored that?” to which counsel replied, “I have, Your Honor,
and I’ve shared that with [Appellant].”

Id. at 24.

The district court then pondered whether to relieve
counsel

of

representation,

stating

that

some

of

Appellant’s

statements conflicted with one another: for example, Appellant
said he did not review discovery materials but did read a police
report;
wants

and

to

breaking

Appellant

know
and

if

[I]

told
know

enterings,”

the

court

anything

but

he

“the
about

district
stolen

nonetheless

anything about substantial assistance.”

attorney

guns

[or]

“d[id]n’t

know

J.A. 18, 24.

The court

found his statements, especially about substantial assistance,
“to

be

almost

inherently

unreliable.”
3

Id.

at

24-25.

The

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Government

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attorney

then

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explained

he

“was

interested

in

[Appellant’s] cooperation,” but “apparently he’s not interested
in cooperating.

That’s fine with me.

far as I’m concerned.”

Id. at 25.

That’s the end of that as

But the attorney admitted he

and defense counsel had “productive conversations about . . .
what might be beneficial to [Appellant].”
In

ultimately

representation,

the

deciding

Id. at 26.

relieve

counsel

court

district

to

stated,

“It’s

of

his

kind

of

inconceivable to me because . . . I don’t think I’ve ever seen a
case

where

related

to

a

whether

assistance.
The

lawyer

didn’t
or

not

introduce

questions

you

to

want

about

pursue

substantial

[N]othing makes any sense if you don’t.”

district

court

ultimately

granted

counsel’s

others

J.A. 28.
motion

to

withdraw because of Appellant’s “obstruction with respect to the
relationship between counsel and defendant.”
Less

than

a

month

after

that

Id.
hearing,

with

the

assistance of new counsel, Appellant pled guilty to a two-count
Information charging him with possession of a List I chemical
(pseudoephedrine) with the intent to manufacture methamphetamine
(“Count One”); and possession of firearms in furtherance of a
drug trafficking crime (“Count Two”).

At the plea hearing, the

district court conducted a plea colloquy during which Appellant
did not attempt to withdraw his plea and did not claim he was
pleading guilty under any duress or coercion.
4

To the contrary,

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Appellant indicated that no one had “in any way attempted to
force [him] to plead guilty against [his] wishes,” and he was
“fully

satisfied”

advice.

with

his

new

counsel’s

representation

and

J.A. 58, 53.
On

December

sentencing hearing.

19,

2014,

the

district

court

held

the

The presentence report (“PSR”) calculated

Appellant’s criminal history at category V and his total offense
level

at

19,

for

a

United

States

Sentencing

(“Guidelines”) range of 57-71 months on Count One.

Guidelines
The PSR also

indicated that Count Two carried a mandatory consecutive minimum
term of five years. 2
departure

on

Count

Appellant’s counsel argued for a downward
One,

noting,

“[T]he

Court

does

have

the

authority to depart downward when a person’s criminal history
category

overstates

history activity.”
[Appellant’s

crimes]

the

seriousness

J.A. 80-81.
are

traffic

of

their

prior

criminal

She explained, “[T]he bulk of
violations

which

.

.

.

now

under North Carolina State law . . . have been demoted in the
seriousness of their . . . nature.”
explained

that

Appellant’s

history

Id. at 81.
did

not

defendants with category V criminal histories.

She also

match

other

In the end, she

urged the district court to depart downward and assign Appellant

2

The Government did not move for a downward adjustment of
Appellant’s offense level based on substantial assistance.

5

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to a criminal history category III, which would have resulted in
a

Guidelines

Government

range

also

Appellant

of

37-46

advised

had

the

been

months
court

of

it

imprisonment.

had

evidence

that

methamphetamine

distributing

no

The

or

pseudoephedrine in the area, and Appellant’s name had never been
mentioned

by

other

methamphetamine

users

and

sellers

in

the

area.
The
however,
depart

district

explaining,

.

.

.

I

court

declined

“[A]lthough

don’t

find

to

depart

recognizing

that

a

my

criminal

downward,

authority
history

to

five

overstates the seriousness of [Appellant’s] criminal conduct.”
J.A.

91.

It

then

sentenced

Appellant

to

57

months

of

imprisonment on Count One and to a consecutive 60 months of
imprisonment on Count Two.
Appellant

filed

a

timely

numerous formal and informal briefs.

notice

of

appeal,

and

We focus on two of the

main issues raised in these briefs: whether the district court
impermissibly interfered with plea discussions in contravention
of Federal Rule of Civil Procedure 11(c)(1) and United States v.
Davila,

133

S.

Ct.

2139

(2013);

and

whether

it

erred

in

declining to depart downward in sentencing Appellant. 3

3

We have considered each of the remaining issues raised by
Appellant, but we find them to fall outside the scope of our
review or to be without merit.

6

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II.
We

first

impermissibly

address

interfered

whether

with

plea

the

district

discussions

court
in

its

explanation of and questions about substantial assistance during
the

motion-to-withdraw

hearing.

Because

Appellant

did

not

object to the district court’s questioning at the hearing, we
review his claim for plain error.
455

F.3d

453,

462

(4th

Cir.

See United States v. Bradley,

2006).

Under

the

plain

error

standard, Appellant must show “(1) there was an error; (2) the
error is plain; and (3) the error affects substantial rights.
We may then exercise our discretion to correct the error if it
seriously affects the fairness, integrity or public reputation
of judicial proceedings.”

United States v. White, --- F.3d ---,

2016 WL 4717943, at *6 (4th Cir. Sept. 9, 2016) (citations and
internal quotation marks omitted).
Appellant
assistance,”

the

claims

district

that
court

by

discussing

was

“coercing

“substantial

[Appellant]

to

provide [] help [to] both his Attorney, and the Government . . .
thus

seeking

their

hopes

information
that

on

[Appellant]

other

so

would

called

local

cooperate.”

cases,

in

Appellant’s

Informal Br. 2, United States v. Rillo, No. 15-4082 (4th Cir.
Feb. 13, 2015; filed Oct. 19, 2015), ECF No. 19.

Appellant

believes the court “instill[ed] fear in him . . . in [his]
choice to plead or go to trial”; the Government “used the ‘haze’
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and

fear

to

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its[]

advantage

.

.

.

to

further

compound [Appellant’s] heightened-intimidation, to poke him to
plead”; and the court and Government “act[ed] in a colluded, or
concerted effort to coerce or scare [Appellant] into seeking
substantial assistance.”

Id. at 2, 4.

The rules of criminal procedure provide, “An attorney
for

the

discuss

government
and

reach

and
a

the

defendant’s

plea

attorney

agreement.

The

.

.

may

must

court

.

not

participate in these discussions.”

Fed. R. Crim. P. 11(c)(1)

(emphasis

supplied).

Rule

indicates

that

discussions,
plea

without

if

the

“Nothing
ban

on

dishonored,

regard

to

in

judicial

demands

11’s

involvement

automatic

case-specific

States v. Davila, 133 S. Ct. 2139, 2148

text,

however,
in

vacatur

of

circumstances.”
(2013).

“particular facts and circumstances matter.”

plea
the

United

On this point,

Id. at 2149.

In analyzing whether a court impermissibly interfered
with plea discussions, we look to “judicial comments” and other
indicia of involvement, such as whether the court influenced or
“initiated plea discussions.”
will

not

find

reversible

Bradley, 455 F.3d at 462.

error

unless

“it

was

We

reasonably

probable that, but for the [court’s participation], [Appellant]
would have exercised his right to go to trial.”
S. Ct. at 2150.

Davila, 133

In answering that question, we look to the

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court’s comments “not in isolation, but in light of the full
record.”

Id.
Taking the hearing as a whole, we fail to see how the

court’s

comments

could

be

construed

initiation of plea discussions.

as

interference

in

or

For one thing, the hearing was

not a plea hearing, but a motion-to-withdraw hearing, and the
court’s

focus

remained

defense

counsel.

on

the

Indeed,

quality

the

of

comments

representation
about

of

substantial

assistance were not to urge Appellant to provide such assistance
in contemplation of a plea, but to ascertain whether his counsel
explained what it was and how it could help him.

The court

never told Appellant he should provide substantial assistance to
the Government, or that he would get a higher sentence if he did
not do so.
This case is markedly different from others where this
court

has

process.

found

impermissible

interference

with

the

plea

See, e.g., United States v. Braxton, 784 F.3d 240, 242

(4th Cir. 2015) (Rule 11 error where district court “repeatedly
spoke in favor of the plea agreement, opining that it would be
best

for

[the

defendant]

to

take

the

government’s

offer

and

forgo trial”); United States v. Sanya, 774 F.3d 812, 816 (4th
Cir.

2014)

struck,

(Rule

district

defendant’s

best

11

error

court

where,

repeated

interest,

before
that

strongly
9

a

plea
plea

suggested

deal
was
the

had

been

in

the

defendant

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would receive a more favorable sentence if he pled guilty, and
commented on the strength of the Government’s case); Bradley,
455

F.3d

at

462

(Rule

11

error

where

the

district

court

“initiated plea discussions, advised the Defendants that they
might

‘be

better

off

pleading

to

the

indictment,’

[and]

suggested that they would likely receive life sentences if they
went to trial”).

In fact, in the case at hand there was no plea

deal even on the table; the Government admitted Appellant’s lack
of interest in cooperating was “the end of that.”

J.A. 25; cf.

United States v. Bierd, 217 F.3d 15, 21 (1st Cir. 2000) (no
error where the remarks of the court did not take place in the
context

of

plea

negotiation

discussions,

but

rather,

in

the

context of a motion for severance).
Rather, this case is more akin to situations in which
the reviewing court “f[ou]nd nothing coercive about the district
judge’s comments.”

United States v. Cannady, 283 F.3d 641, 642,

645 (4th Cir. 2002) (no Rule 11 error where, after defendant and
the Government had reached a plea agreement, defendant began to
“reopen the negotiation process” at the plea hearing regarding
his waiver of collateral review and the court stated, “I’m not
going to waste time by taking a guilty plea and then having him
file a 2255 . . . .

[E]ither he decides to waive the 2255, or

we are going to go to trial”); United States v. Telemaque, 244
F.3d 1247, 1248-49 (11th Cir. 2001) (per curiam) (no Rule 11
10

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error

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where

defendant

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expressed

attorney

for

not

mentioning

reduction

for

acceptance

of

dissatisfaction

the

possibility

responsibility,

with

his

of

and

sentence

the

district

court “then pointed out . . . that the offense-level reduction
was up to the court and as yet undecided”); Bierd, 217 F.3d at
21 (holding that court’s mention of a guilty plea and acceptance
of responsibility to defense counsel was not reversible error);
see also United States v. Frank, 36 F.3d 898, 903 (9th Cir.
1994)

(Rule

11

“does

not

establish

a

series

of

traps

for

imperfectly articulated oral remarks.”).
For these reasons, the district court did not err, let
alone

plainly

err,

in

its

questioning

and

commentary

at

the

motion-to-withdraw hearing.
III.
Appellant

also

claims

the

district

court

failing to depart downward when sentencing him.
district

court’s

Guidelines

is

decision

not

not

to

reviewable

depart

unless

from

the

believed that it lacked authority to depart.”

erred

in

However, “[a]
the

court

Sentencing
mistakenly

United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007) (internal quotation
marks omitted).

The sentencing transcript is clear that the

district court knew it had the authority to depart, but decided
not to do so.

Therefore, this issue is unreviewable.

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IV.
For

the

foregoing

reasons,

the

judgment

of

the

district court is
AFFIRMED.

12