source: Caselaw Access Project

author: SACK, Circuit Judge:

license: Public Domain

text:
    RADHA GEISMANN, M.D., P.C., individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. ZOCDOC, INCORPORATED, Defendant-Appellee, John Does 1-10, Defendants.

    Docket No. 14-3708
    August Term, 2014
    United States Court of Appeals, Second Circuit.
    Argued: June 5, 2015
    Final Submission: February 1, 2016
    Decided: March 9, 2017

      GLENN L. HARA (David M. Oppen-heim, on the brief), Anderson + Wanca, Rolling Meadows, Illinois, for Plaintiff-Appellant.
    BLAINE C. KIMREY (Charles J. Ner-ko, Yedder Price P.C., New York, New York, Bryan K. Clark, on the brief), Yed-der Price P.C., Chicago, Illinois, for Defendant-Appellee.
    Before: SACK, HALL, and CARNEY, Circuit Judges.

       The Clerk of Court is respectfully directed to amend the official caption to conform to the caption as it appears above.

   SACK, Circuit Judge:

Plaintiff-appellant Radha Geismann, M.D., P.C. (“Geismann”), appeals from the district court’s dismissal of its putative class action against the defendant-appellee ZocDoc, Inc. (“ZocDoc”), alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Geis-mann’s suit stems from two unsolicited telecopies (colloquially and hereinafter “faxes”) it allegedly received from ZocDoc. After Geismann filed a complaint and motion for class certification, ZocDoc made a settlement offer to Geismann as to its individual claims pursuant to Federal Rule of Civil Procedure 68. Geismann rejected the offer. ZocDoc then moved to dismiss the action for lack of subject matter jurisdiction on the ground that its offer afforded Geismann complete relief, thereby mooting the action. The United States District Court for the Southern District of New York (Louis L. Stanton, Judge) granted the motion, agreeing with ZocDoc that the rejected offer, which the court concluded would have afforded Geismann complete relief on its individual claims, rendered the entire action moot, notwithstanding the pending class-certification motion. The court entered judgment in Geismann’s favor under the terms offered by ZocDoc and dismissed the action. While this appeal was pending, the district court granted ZocDoc leave to deposit a check in the amount of $6,100.00 with the Clerk of the United States District Court for the Southern District of New York in satisfaction of judgment.

We conclude that the action was not and is not “moot.” An unaccepted Rule 68 offer of judgment is, regardless of its terms, a legal nullity.

BACKGROUND

Geismann, a Missouri corporation, alleges that it received from ZocDoc, a Delaware corporation, two unsolicited faxes advertising a “patient matching service” for doctors. Joint Appendix (“J.A.”) 43, BI-SS. Both faxes stated that if the recipient -wished to “stop receiving faxes,” he or she could call a domestic telephone number provided in the fax. J.A. 57, 58.

In 2014, Geismann filed a complaint in Missouri state court alleging that these faxes violated the TCPA, which prohibits, inter alia, the use of “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless” the sender and recipient have an “established business relationship,” the recipient volunteered its fax number directly to the sender or through voluntary participation in a directory or other public source, or the fax meets certain specified notice requirements. 47 U.S.C. § 227(b)(1)(C); see also id. § 227(a)(5) (“The term ‘unsolicited advertisement’ means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.”).

The complaint requested between $500.00 and $1,500.00 in damages for each TCPA violation, an injunction prohibiting ZocDoc from sending similar faxes in the future, and costs. See id. § 227(b)(3) (providing a private right of action for injunc-tive relief and damages in the amount of “actual monetary loss” or “$500 ... for each [ ] violation, whichever is greater,” to be tripled at the court’s discretion if the defendant “willfully or knowingly violated [the statute]”).

The complaint also requested that the case be treated as a class action. Geismann filed a separate motion for class certification pursuant to Missouri law the same day that it filed the complaint. The certification motion contained a footnote explaining that Geismann filed the motion at the same time as the complaint because the “[defendants in class litigation have resorted to making individual settlement offers to named plaintiffs before a class action is certified in an attempt to ‘pick-off the putative class representative and thereby derail the class action litigation.” Pl.’s State Ct. Mot. for Class Certification at 1 n.l (J.A. 19).

On March 13, 2014, ZocDoc removed the action to the United States District Court for the Eastern District of Missouri, invoking federal question jurisdiction. See 28 U.S.C. §§ 1331, 1367. Two weeks later, ZocDoc made an offer of judgment to Geis-mann pursuant to Federal Rule of Civil Procedure 68 for (1) $6,000, plus reasonable attorney’s fees, in satisfaction of Geismann’s individual claims, and (2) an injunction prohibiting ZocDoc from engaging in the alleged statutory violations in the future. On April 8, 2014, Geismann rejected the offer but indicated that it would be willing to accept if ZocDoc would extend the same offer to all members of the putative class action. ZocDoc declined.

In August 2014, the district court granted ZocDoc’s motion to transfer the action to the Southern District of New York. See 28 U.S.C. § 1404(a). ZocDoc then moved to dismiss the complaint, primarily on the ground that its offer of judgment mooted the action. Geismann disputed, inter alia, whether the unaccepted offer “provided full satisfaction of [its] claim,” arguing that the TCPA provides for monetary damages per “violation,” not per fax, entitling it to “recover for each of the multiple violations in each fax.” Pl.’s Opp’n to Def.’s Mot. to .Dismiss at 14 n.4, Geismann v. ZocDoc, Inc., No. 14-cv-7009, 2014 WL 10752128 (S.D.N.Y. Sept. 25, 2014), ECF No. 53.

The district court disagreed, reasoning:

The monetary damages Geismann can recover individually under the TCPA for two unsolicited faxes [it] received are limited to $1,000, which could be trebled to not more than $3,000 if the Court finds that it was a willful and knowing violation. ZocDoc’s offer of judgment not only adds Geismann’s attorneys’ fees, but is twice the trebled amount, and thus more than satisfies any recovery Geismann could make under the applicable statute.

Geismann v. ZocDoc, Inc., 60 F.Supp.3d 404, 405-06 (S.D.N.Y. 2014). The court entered judgment in the amount and under the terms of the rejected settlement offer and dismissed the action as moot because, following the settlement offer and entry of judgment, “there remained], no case or controversy.” Id. at 407.

Geismann then brought this appeal. While the appeal was pending, ZocDoc requested leave to deposit a check in the amount of $6,100.00 payable to the clerk of the district court in satisfaction of judgment. Pl.’s Ltr. Mot. at 2-3, Geismann v. ZocDoc, Inc., No. 14-cv-7009 (S.D.N.Y. Feb. 1, 2016), ECF No. 60. The court granted the request, reasoning that the Supreme Court’s then-recent decision in Campbell-Ewald Co. v. Gomez, — U.S. —, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016), “favor[s] deposit of judgments with the Court” in these circumstances. Order for Deposit in Interest Bearing Account at 2, Geismann v. ZocDoc, Inc., No. 14-cv-7009 (S.D.N.Y. Feb. 3, 2016), ECF No. 63.

We ordered the parties to submit supplemental briefing addressing the effect of Campbell-Ewald on the issues presented in this appeal, and,' on February 1, 2016, both parties made á responsive submission. ZocDoc argued that following the entry of judgment and deposit of funds with the clerk of the court, the plaintiff in this case, unlike the plaintiff in Campbell-Ewald, was not left “emptyhanded.” Def.’s Supp. Br. at 2, 4. Geismann argued, inter alia, that Campbell-Ewald foreclosed the district court’s disposition of this case because “an unaccepted settlement offer or offer of judgment does not moot a plaintiffs case no.matter how good the terms.” Pl.’s Supp. Br. at 1 (internal quotation marks omitted).

DISCUSSION

A. Standard of Review

“In considering a dismissal for lack of jurisdiction, we review the district court’s factual findings for clear error and its legal conclusions de novo.” APWU v. Potter, 343 F.3d 619, 623-24 (2d Cir. 2003).

B. Jurisdiction

Our jurisdiction is limited by Article III, section 2, of the United States Constitution to “cases” and “controversies.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Where there is no unresolved ease or controversy, “mootness occurs” and “the court — whether trial, appellate, or Supreme — loses jurisdiction over the suit, which therefore must be dismissed.” Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 118-19 (2d Cir. 2001).

C. Campbell-Ewald

Geismann ’ argues that the district court erred in dismissing its complaint for lack of subject matter jurisdiction because ZocDoc’s proffered monetary damages did not provide complete relief as to Geis-mann’s individual claims; the individual and putative class claims were therefore not moot. Alternatively, Geismann asks us to conclude, as a matter of first impression in this Circuit, that even if the offer was complete as to its individual claims, an individual judgment does not render moot a putative class claim, at least when a class-certification motion is pending. Cf. Tanasi v. New Alliance Bank, 786 F.3d 195, 198 (2d Cir. 2015), as amended (May 21, 2015), cert. denied, — U.S.—, 136 5.Ct. 979, 194 L.Ed.2d 3 (2016) (declining to address this question). While this appeal was pending before us, the Supreme Court decided Campbell-Ewald. Its decision made clear that an unaccepted Rule 68 offer of judgment does not render an action moot. Campbell-Ewald, 136 S.Ct. at 670-71. Because that decision controls our review and is dispositive of the case at bar, we need not, and decline to, reach the issues raised by Geismann in its pre-Campbell-Ewald submissions.

In Campbellr-Ewald, the plaintiff sought individual and class-wide relief under the TCPA, alleging that he and members of the putative class received unsolicited text messages sent by the defendant in violation of the statute. Id. at 667. The defendant, like ZocDoc, “proposed to settle [the plaintiffs] individual claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68,” including an offer to pay “costs, excluding attorney’s fees, and $1,503 per message,” as well as “a stipulated injunction in which [the defendant] agreed to be barred from sending text messages in violation of the TCPA.” Id. at 667-68. The plaintiff, like Geismann, declined the offer. Id. at 668. The Supreme Court concluded that an Article III “case” or “controversy” remained, Rule 68 offer notwithstanding, because “[a]n unaccepted settlement offer — like any unaccepted contract offer — is a legal nullity, with no operative effect.” Id. at 670 (quoting Genesis Healthcare Corp. v. Symczyk, — U.S. —, 133 S.Ct. 1523, 1533, 185 L.Ed.2d 636 (2013) (Kagan, J., dissenting)). “[W]ith no settlement offer still operative, the parties remained adverse; both retained the same stake in the litigation they had at the outset.” Id. at 670-71.

In light of Campbell-Ewald, the district court’s conclusion in this ease that Geismann’s claim was “mooted by the amount and content of the Rule 68 offer made by ZocDoc,” Geismann, 60 F.Supp.3d at 407, is incorrect. Rule 68 provides that, “[a]t least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” Fed. R. Civ. P. 68(a). “The plain purpose of Rule 68 is to encourage settlement and avoid litigation.” Marek v. Chesny, 473 U.S. 1, 5, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). Should the offeree decline the offer, however, it “is considered withdrawn.” Fed. R. Civ. P. 68(b). Campbell-Ewald makes clear that such a “withdrawn” offer “ha[s] no continuing efficacy.” 136 S.Ct. at 670. The district court’s entry of judgment, therefore, imbued ZocDoc’s offer with a power it did not possess.

The district court’s conclusion in the case now before us is, of course, understandable, it having been reached before Campbell-Eiuald, was decided. And, as we have noted, “our prior case law has not always been entirely clear on this subject.” Tanasi, 786 F.3d at 199. The district court also followed the “typically proper” procedure by “entering] judgment agajnst the defendant for the proffered amount and [ ] directing] payment to the plaintiff consistent with the offer.” Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir. 2013) (per cu-riam). But the basis upon which the district court entered judgment did not exist: An unaccepted Rule 68 offer of judgment does not render an action moot.

ZocDoc attempts to distinguish Campbell-Ewald on two grounds. First, unlike Campbell-Ewald, the district court entered judgment in this case, giving effect to the unaccepted offer. We do not find this distinction meaningful because the judgment should not have been entered in the first place. See Campbell-Ewald, 136 S.Ct. at 672 (“[A]n unaccepted settlement offer or offer of judgment does not moot a plaintiffs case, so the District Court retained jurisdiction to adjudicate [the plaintiffs] complaint.”). “Under basic principles of contract law,” id. at 670, “the recipient’s rejection of an offer leaves the matter as if no offer had ever been made.... So assuming the case was live before — because the plaintiff had a stake and the court could grant relief — the litigation carries on, unmooted,” id. (quoting Genesis Healthcare, 133 S.Ct. at 1533 (Kagan, J., dissenting) (internal quotation marks omitted)). The result in Campbell-Ewald cannot be avoided simply by entering a judgment effectuating an otherwise precluded dismissal.

ZocDoc notes that the district court did not act reflexively, having carefully considered the content of the rejected offer. Be that as it may, the offer that the district court carefully reviewed was null and void at the time. It is of no moment whether the offer “more than satisfie[d] any recovery Geismann could make under the applicable statute.” Geismann, 60 F.Supp.3d at 406. “When a plaintiff rejects [a Rule 68] offer — however good the terms — her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief.” Campbell-Ewald, 136 S.Ct. at 670 (quoting Genesis Healthcare, 133 S.Ct. at 1533 (Kagan, J., dissenting)).

Geismann also contests whether the offer in fact “more than satisfie[d] any recovery [it] could make under the applicable statute.” Geismann, 60 F.Supp.3d at 406. Indeed, Geismann insisted in its opposition to the motion to dismiss that the amount proffered by ZocDoc did not “provide! ] full satisfaction of [Geismann’s] claim,” in part because the parties had divergent legal theories regarding the amount of damages available under the TCPA. Pl.’s Opp’n to Def.’s Mot. to Dismiss at 14 n.4, Geismann v. ZocDoc, Inc., No. 14-cv-7009, 2014 WL 10752128 (S.D.N.Y. Sept. 25, 2014), ECF No. 53. That constitutes a live controversy precluding dismissal on the basis of mootness. “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) (internal quotation marks omitted). While we recognized prior to Campbell-Ewald that a judgment entered pursuant to an offer can render an action moot where “the parties agree that a judgment should be entered against the defendant,” Tanasi, 786 F.3d at 200 (emphasis added), the offer of judgment alone does not have the same or a similar effect, see, e.g., Hepler v. Abercrombie & Fitch Co., 607 Fed.Appx. 91, 92-93 (2d Cir. 2015) (summary order); Franco v. Allied Interstate LLC, 602 Fed.Appx. 40, 41 (2d Cir. 2015) (summary order). This was neither a case in which the parties agreed to the entry of a particular judgment, see Tanasi, 786 F.3d at 200, nor one in which an accepted offer rendered the plaintiffs claim moot, see Bank v. Alliance Health Networks, LLC, 669 Fed.Appx. 584, 2016 WL 6128043, at *1, 2016 U.S. App. LEXIS 18849, at *2 (2d Cir. 2016) (summary order) (stating that although the “Supreme Court has held that an unaccepted Rule 68 offer of judgment, on its own, will not moot a plaintiffs claims,” that rule does not control where, unlike here, the plaintiff “negotiated the check” proffered by the defendants).

ZocDoc also argues that Campbell-Ewald is distinguishable because Geis-mann was not left “emptyhanded.” 136 S.Ct. at 672. We disagree. ZocDoc’s unsuccessful attempt to tender judgment notwithstanding, Geismann has not been compensated in satisfaction of its claim, which would require, at a minimum, its acceptance of a valid offer. See id. (“[W]hen the settlement offer ... expired, [the plaintiff] remained emptyhanded; [the plaintiffs] TCPA complaint, which [the defendant] opposed on the merits, stood wholly unsatisfied.”). Geismann thus remains empty-handed, distinguishing this case from the trio of 19th-century tax cases that ZocDoc cites for the proposition that Geismann’s claim is “extinguished”; in each of those cases, the claimant accepted tender. See California v. San Pablo & Tulare R.R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747 (1893) (finding that the dispute was resolved by “the offer to pay all [] sums, and the deposit of money in a bank, which by a statute of the state have the same effect as actual payment and receipt of the money” (emphases added)); Little v. Bowers, 134 U.S. 547, 552, 10 S.Ct. 620, 33 L.Ed. 1016 (1890) (observing that there was “no denial of the fact that the taxes in dispute ha[d] been paid” and therefore, implicitly, accepted); San Mateo Cnty. v. S. Pac. R.R. Co., 116 U.S. 138, 141, 6 S.Ct. 317, 29 L.Ed. 589 (1885) (noting that there was no dispute that the “debt for which the suit was brought ha[d] been unconditionally paid and satisfied”).

ZocDoc’s post-judgment actions move it no closer to its goal. The order granting leave' to deposit a check in the amount of $6,100.00 with the clerk of the district court in satisfaction of judgment was made pursuant to and in furtherance of a judgment that should not have been entered in the first place. And even if that deposit had satisfied Geismann’s demand for monetary relief, it alone does nothing to satisfy the demand for injunctive relief. Cf. Mey v. N. Am. Bancard, LLC, 655 Fed.Appx. 332, 336 (6th Cir. 2016) (summary order) (observing that “a tender” of monetary damages alone “does nothing to satisfy [the plaintiffs] request for injunctive relief’).

This is also not a case that matches the hypothetical posed by Campbell-Ewald, where the Supreme Court declined to consider whether the outcome would be different had the “defendant deposited] the full amount of the plaintiffs individual claim in an account payable to the plaintiff, and the court then enter[ed] judgment for the plaintiff in that amount.” 136 S.Ct. at 672 (emphasis added). Here the district court entered a judgment that should not have been entered in the first place, and ZocDoc then more than one year later deposited an amount in satisfaction of that errant judgment in an account payable to Geis-mann. Accordingly, we need not, and do not, decide whether a different outcome would result if the facts here matched the Campbell-Ewald hypothetical.

D. Other Issues

Because we conclude that ZocDoc’s unaccepted offer did not moot Geismann’s individual claim, we need not address the remaining issues raised on appeal. The district court should not have entered judgment on the basis of ZocDoc’s offer, nor therefore should it have dismissed Geismann’s action. Because a named plaintiff remains in this action, the dismissal of the class claim was also in error. Although the district court may, in its discretion, permit ZocDoc to deposit with the court “any part of the relief sought,” Fed. R. Civ. P. 67, the basis for so granting the defendant leave to deposit must not be inconsistent with this opinion.

CONCLUSION

For the foregoing reasons, we VACATE the judgment of the district court and REMAND for further proceedings.

      . ''J.A.” hereinafter refers to the parties' joint appendix filed in this Court on November 6, 2014.

      . The TCPA provides that "[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring [an action] in an appropriate court of that State.” 47 U.S.C. § 227(b)(3).

      . The original complaint also included a claim under the Missouri Consumer Fraud and Deceptive Business Practices Act and a claim for conversion. The former was voluntarily dismissed prior to the filing of the Corrected First Amended Complaint. The district court did not directly address the latter, which was included in the Corrected First Amended Complaint. Geismann stated in its opposition to the motion to dismiss that it planned to dismiss voluntarily the conversion claim and therefore did not oppose its dismissal. The district court's dismissal for lack of subject matter jurisdiction following the entry of judgment applies to the entire action, including the conversion claim, making it a "final decision[ ]" over which we have jurisdiction. 28 U.S.C. § 1291.

      . Geismann’s initial complaint requested attorney’s fees for its state law claims, not for its claim under the TCPA, a statute that the parties agree does not provide expressly for the award of attorney's fees or costs. Attorney’s fees are not at issue in this appeal, and we do not take a position regarding the statutory availability of any such fees.

      . Geismann challenges this deposit order in a related appeal. See Geismann. v. ZocDoc, Inc., No. 16-663 ("Geismann II"). Because the disposition of the present appeal renders moot the issues there raised, we have concurrently issued an order granting ZocDoc’s motion to dismiss Geismann II as duplicative.

      . The Supreme Court declined to consider "whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.” Campbell-Ewald, 136 S.Ct. at 672. That "hypothetical” did not present itself in Campbell-Ewald in part because the district court declined to dismiss the plaintiff's claim on the ground that it was rendered moot by the unaccepted Rule 68 offer, Gomez v. Campbell-Ewald Co., 805 F.Supp.2d 923, 928-30 (C.D. Cal. 2011), and the United States Court of Appeals for the Ninth Circuit affirmed, Gomez v. Campbell-Ewald Co., 768 F.3d 871, 875 (9th Cir. 2014).

      . While we decline to resolve this dispute, we note that Geismann’s position is not frivolous. To wit: the Eleventh Circuit recently sided in favor of Geismann's per-violation interpretation of the TCPA. Lary v. Trinity Physician Fin. & Ins. Servs., 780 F.3d 1101, 1106 (11th Cir. 2015) ("In plain terms, the statute allows a person to recover ‘$500 in damages for each' 'violation of this subsection.’ Section 227(b)(1) has no language limiting the recovery to $500 per 'call' or 'fax.' ” (citation omitted)).

      . We note, without deciding because the situation is not before us, that an attempt by the defendant to use the tactic described in the Campbell-Ewald hypothetical to “place [it] in the driver’s seat,” 136 S.Ct. at 672, might not work. The Supreme Court’s criticism of similar tactics suggests that Rule 68 should be harmonized with Rule 23. See id. (describing a "kindred strategy” intended to "avoid a potential adverse decision” as a “gambit”); cf. Genesis Healthcare, 133 S.Ct. at 1536 (Kagan, J., dissenting) (stating that a court should not "short-circuit” a statutory collective action "by acceding to a defendant's proposal to make only the named plaintiff whole”). The Supreme Court has also acknowledged that ”[r]equiring multiple plaintiffs to bring separate actions, which effectively could be 'picked off’ by a defendant’s tender of judgment before an affirmative ruling on class certification could be obtained obviously would frustrate the objectives of class actions,” and "would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement.” Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980). However, we need not, and therefore do not, weigh in on whether further maneuvers by the defendant might render a motion to dismiss viable. We do no more than observe the obvious: an attempt to make use of the hypothetical posited in Campbell-Ewald is not guaranteed to bear fruit.


author: DENNIS JACOBS, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Calvin JOHNSON, a.k.a. Cal, Defendant-Appellant.
    Docket No. 15-3498-cr
    August Term 2016
    United States Court of Appeals, Second Circuit.
    Argued: December 12, 2016
    Decided: March 10, 2017

      Paul D. Silver, Assistant United States Attorney, for Richard S. Hartunian, United States Attorney for the Northern District of New York (with Miroslov Lovric, Assistant United States Attorney, on the brief), Albany, New York, for the United States of America.
    Lawrence Gerzog, New York, New York, for Defendant-Appellant.
    Before: JACOBS, CABRANES, and PARKER, Circuit Judges.
   DENNIS JACOBS, Circuit Judge:

Calvin Johnson appeals from a criminal judgment of the United States District Court for the Northern District of New York (McAvoy, ./.), entered October 20, 2015, on a plea of guilty (without a plea agreement) to a drug conspiracy in violation of 21 U.S.C. §§ 841(a)(1) and 846, and to being a felon in possession of a firearm,_ in violation of 18 U.S.C. § 922(g)(1). A few months after his plea on July 3, 2015, but before his sentencing, Johnson wrote to the district court seeking to withdraw his plea and replace his lawyer, asserting that he did not understand that his guilty plea would necessarily entail a mandatory life sentence. If he understood that the judge would have no discretion, Johnson explained, he would have gone to trial. The district court denied the motion without a hearing, and Johnson also appeals from that denial.

We conclude that Johnson’s plea was not entered voluntarily, knowingly, and intelligently. In the plea hearing, the impression was given that there was a range of sentencing options: the judge spoke of “the potential sentences”; the prosecutor gave an account of multiple maximum and minimum sentences, discussed supervised release, and warned of the forfeiture of rights (including the right to hold public office); and the court and prosecutor discussed Sentencing Guidelines ranges and judicial discretion to weigh the facts and circumstances. Although the prosecutor at one point stated that a minimum sentence of life would “trump” other considerations, that critical advice was overwhelmed by Incompatible advisories. The sentencing transcript suggests that Johnson’s counsel (on whom Johnson would rely to sort it out) may not have understood the inexorable nature of the sentence either. And Johnson’s assertion that he would have gone to trial if he knew that a life sentence was foreordained is rendered plausible by the arresting fact that he derived absolutely no benefit or advantage from the plea.

Accordingly, we vacate the district court’s judgment and Johnson’s plea, direct that the case be reassigned, and remand for further proceedings consistent with this opinion.

BACKGROUND

I

In October 2014, a grand jury indicted Calvin Johnson on one count of participation in a drug-trafficking conspiracy in violation of 21 U.S.C. §§ 841(a)(1) and 846 and one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). The statutory determinants of his sentencing exposure appear relatively complex, but his actual sentence if convicted could hardly be simpler.

The firearm count, pursuant to 18 U.S.C. § 924(a)(2), carries a maximum sentence of ten years of imprisonment and no mandatory minimum. The drug count, pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851, carries a maximum sentence of life imprisonment and a mandatory minimum that depends upon the application of prior-felony enhancements: the baseline is a mandatory minimum of ten years of imprisonment; a prior conviction for a felony drug offense makes a defendant eligible for a mandatory minimum of twenty years; and two such prior convictions make a defendant eligible for a mandatory life sentence. Pursuant to § 851, the “imposition of an enhanced penalty is not automatic,” but is triggered when “the Government files an information notifying the defendant in advance of trial (or prior to the acceptance of a plea) that it will rely on that defendant’s prior convictions to seek a penalty enhancement.” United States v. LaBonte, 520 U.S. 751, 754 n.1, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997).

The government did seek an enhancement: it filed an information establishing that Johnson had been twice convicted of criminal sale of a controlled substance in the third degree in violation of New York State Penal Law § 220.39(1). Those judgments were entered nearly 20 years earlier, in September and December of 1995, when Johnson was 19 years old. Johnson was incarcerated from 1995 until 2003. He appears not to have had significant involvement with the criminal justice system after his release until he was indicted in the present case, when he was 38 years old.

This indictment charges Johnson with responsibility for drug trafficking that allegedly occurred in or through a nightclub that Johnson operated in Binghamton, New York. The weapon that gives rise to the firearm count was apparently discovered behind a jukebox. By operation of the prior-felony information, conviction on the drug-trafficking count entails a mandatory sentence of life imprisonment. No other sentence is possible.

II

In March 2015, Johnson and his lawyer, Lee Kindlon, appeared by videoconference from Albany before Senior U.S. District Judge Thomas McAvoy in Binghamton. The purpose of the hearing was to enter a guilty plea. Judge McAvoy advised Johnson that he had a right to appear in the same room and asked whether it was “okay with [him]” that they proceed by videoconference, .and Johnson said that it was. App. 19. Johnson had no plea agreement, but that circumstance was never mentioned at his plea hearing. It is not clear from the record whether his lawyer attempted to negotiate an agreement, or whether the government was willing.

In colloquy, the judge asked Johnson whether Kindlon had explained to him “the potential sentences” (in the plural), “or consequences of pleading guilty,” and Johnson said yes; the judge asked him if he had understood them, and Johnson said that he had. Id. at 20.

Later, the judge asked the prosecutor, Miroslov Lovric, to “please advise Mr. Johnson and the Court what the maximum or any minimum penalties would be.” Id. at 30. Lovric said that “the possible maximum penalty is life imprisonment” and that,“the mandatory minimum pursuant to statute is life imprisonment.” Id. He went on to add that “there’s a supervised release term required of at least ten years”; that “[i]f there’s any violation of the terms of supervised release, the Court would have the power to add an additional five years of imprisonment for any violation thereof’-; that the second count had a “possible maximum sentence” of ten years with “no mandatory minimum required”; and that, with respect to both counts, “in addition to these possible maximum penalties,” Johnson would lose certain rights, including the right to vote, to possess a firearm, to hold certain public offices, and to obtain certain licenses. Id. at 30-31. He summed up, saying that he “believe[s] those are the possible maximum penalties and the statutory minimum penalties.” Id. at 31.

‘Without discussing the prosecutor’s remarks or asking Johnson whether he understood them, Judge McAvoy then addressed Johnson:

[T]he Court also has to inform you that under, and pursuant to certain Sentencing Guidelines that used to be mandatory but are no longer mandatory but still must be considered by the sentencing court, that my discretion in sentencing you is thereby affected and the Court must enforce the law as it stands today but sometimes the Court can sentence you above the Guidelines, below the Guidelines or [e]ven outside of the Guidelines depending upon the facts, the circumstances and the law that’s brought to the Court’s attention at or about the time of sentencing.

Id. at 32. He asked whether Johnson understood “what I just said about the Sentencing Guidelines” and Johnson said yes.

Judge McAvoy asked the prosecutor for a preliminary Guidelines calculation, and Lovric then delivered about two pages of transcript in the jargon of the United States Sentencing Guidelines. He described one calculation with the result that “the guidelines range is 30 to life,” another that is also “30 to life,” another that “would be 262 to 327 months,” another that “would be 151 to 188 months,” another that “is 108 to 135 months” and one that is “188 to 235 months.” Id. at 33-34. He then added:

All of the guideline provisions I’ve just described are nevertheless trumped by the fact that the statutory mandatory minimum is a life term under Section 21 U.S.C. 841(b)(1)(A) [sic] and as I indicated that is the statutory mandatory minimum in this case when I indicated the possible penalties under count one. So the Guidelines are trumped by that statutory mandatory minimum.

Id. at 34. Without commenting on the prosecutor’s description of the Guidelines calculations or asking Johnson whether he understood their applicability (or that, as a practical matter, they simply had no applicability because of the mandatory life sentence), the judge asked Johnson, “now that you’ve heard about the statutory sentence and Guidelines, do you still wish to plead guilty?” Johnson said, ‘Tes, your Honor.”

Judge McAvoy then turned his questioning to Johnson’s lawyer. Kindlon described his background and his experience, including dozens of cases over more than a decade. He also said that he and members of his firm had spent “dozens and dozens of hours” on Johnson’s case, “in preparation, reviewing all the documents, going over them with Mr. Johnson and even trial prep over the past weekend and then meetings yesterday with [Johnson] in preparation for today’s plea.” Id. at 35. The judge asked him whether he knew of any defenses that would prevail at trial and Kindlon answered that “[a]gain, your Honor, after going over this thing from soup to nuts over the weekend, we could think of nothing. No viable defense to the charges.” Id. at 36. The judge asked if Kindlon knew any reason why Johnson should not plead guilty, and Kindlon said no. There is nothing to suggest why Johnson — in the midst of trial preparation — would knowingly elect to plead when a plea could yield no discount from the worst that could happen at trial.

Judge McAvoy accepted and entered the plea.

Ill

On June 24, 2015 — just shy of four months after his plea hearing — Johnson sent a handwritten letter to Judge McAvoy requesting that his plea be withdrawn and that Kindlon be replaced:

My plea was not made knowingly or voluntar[il]y. I was mislead and ineffectively assisted by my attorney into believing that your Honor could sentence me to a sentence lower than the statutory sentence provided in section 841(b)(1)(a) of the sentencing codes.
During my plea allocution you stated that you had the power to go above, below, or even outside the guidelines depending on the laws at the time of my sentencing. I misunderstood you to mean you could sentence outside of the statutory sentences as well.
Without being lead to believe this by my attorney I would never have pleád guilty to charges that sentence me to a mandatory term of life in prison.
I have everything to gain going to trial versus just accepting a life sentence. Mr. Khindlon has provided me with ineffective assistance, not only by advising me to plead guilty to a mandatory life sentence, but also by stating to me as well as stating to your Honor on the plea allocution record that “He cannot come up with a defense.”

Id. at 39-40. It does not appear that Kind-lon was asked to respond. In any event, he did not. The government filed an opposition.

A few days after the date of Johnson’s letter, but one day before it was filed by the clerk, Kindlon filed a sentencing memorandum. That memorandum does not mention the mandatory sentence. It argues that the career-offender enhancement should not apply and that the court should use a 1:1 crack-to-powder ratio. It thus assumes application of the Sentencing Guidelines, even though they could have no effect as a result of the mandatory sentence. (The government’s sentencing memorandum responds to those arguments but also points out that the mandatory life sentence applies.)

On October 5, 2015, Judge McAvoy ruled without a hearing, denying the motion to withdraw the guilty plea and to replace Kindlon. Most of the decision is a detailed restatement of the plea hearing. It concludes that Johnson “under oath, informed the Court that he understood the charges against him and the consequences of pleading guilty, and that his attorney had explained both to him,” and therefore that his “claims here are contradicted by his own sworn statements at the plea allo-cution.” Id. at 52.

On October 21, 2015, Johnson and Kind-lon appeared before Judge McAvoy for sentencing. The judge asked Kindlon what he would like to say on behalf of his client, and Kindlon briefly discussed the phenomenon of overly harsh sentences and seemingly asked the judge to use discretion (though he could not lawfully do so):

[W]e stand here next to Mr. Johnson on [sic] watching the sands shift in front of us in terms of the sentencing guidelines and I only ask that the Court take this into consideration so we’re not standing here in five years or ten from now, you know, asking to have Mr. Johnson re-sentenced to something other than'what he may be sentenced to today, something much less. I ask the Court to be prospective in how it sentences Mr. Johnson. Look at all the things he’s done and balance them against the things which he pled guilty to and sentence him accordingly.

Id. at 79. Judge McAvoy said that he thought a “more appropriate” sentence “would be something in the neighborhood of 180 months” but that he was bound by the law. Id. at 80. Accordingly, Johnson was sentenced to life in prison.

With new counsel, Johnson appealed. He argues that his guilty plea should be vacated because it was not knowing, intelligent, and voluntary; that his motion to withdraw the plea should have been granted; and that it was an abuse of discretion to deny his motion to replace counsel without a hearing.

DISCUSSION

I

A guilty plea operates as a waiver of constitutional rights, including the rights to a jury trial and against self-incrimination, and it is therefore “valid only if done voluntarily, knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely consequences.’ ” Bradshaw v. Stumpf 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).

Procedurally, pleas are governed by Rule 11 of the Federal Rules of Criminal Procedure. Given the constitutional implications, “this Circuit has adopted a standard of strict adherence to Rule 11 and ... therefore we examine • critically even slight procedural deficiencies to ensure that the defendant’s guilty plea was a voluntary and intelligent choice, and that none of the defendant’s substantial rights has been compromised.” United States v. Livorsi, 180 F.3d 76, 78 (2d Cir. 1999) (quotations, citations, and modifications omitted). When a Rule 11 violation is raised in the district court, this Court reviews for harmless error. See United States v. Tien, 720 F.3d 464, 469 (2d Cir. 2013). “In demonstrating harmless error, it is not enough to negate an effect on the outcome of the case. Rather, the Government must prove that the error was harmless beyond a reasonable doubt.” Id. (citations and internal quotation marks omitted).

Rule 11 provides that “the court must address the defendant personally in open court” and “must inform the defendant of, and determine that the defendant understands” a long list of things, Fed. R. Crim. P. 11(b)(1), including “any maximum possible penalty” and “any mandatory minimum penalty.” Id. ll(b)(l)(H)-(I). The district judge in this case did not personally inform the defendant of any sentence at the plea hearing, but it is enough that the court directed the prosecutor to do so. The baffling complexity of the prosecutor’s account did, however, render serious the failure by the court to confirm that Johnson understood the sentence that his guilty plea entailed. Johnson says that he was confused, and it is easy to see how that might be. Johnson was not trained in the law.

The most significant fact for Johnson at his plea hearing — a fact that he had to understand for his plea to be voluntary, knowing, and intelligent — was that life imprisonment was the certain consequence of pleading guilty. This was not merely a potential sentence, or one possible maximum among other possibilities, but his certain and inevitable sentence upon conviction. By pleading guilty, he was effectively sentencing himself to spend the rest of his life in prison; yet this fact was not conspicuous at his plea hearing, which included discussion of many other “possible” (though actually impossible) sentences and robotic references to (inapplicable) calculations and judicial discretion.

Johnson’s plea hearing, in relevant part, proceeded in three explanatory stages, each of them comprehensible only from the perspective of a lawyer or judge for whom plea hearings are routine.

The prosecutor’s first lengthy recital, specifying the “possible maximum,” a “mandatory minimum,” the loss of certain rights, and statutory periods of supervised release with additional terms of incarceration for violations, was technically sound, but confusing and difficult to reconcile with the inevitability of Johnson’s sentence. The “possible maximum” was no mere possibility; and while conviction would bar Johnson from obtaining certain licenses and holding certain public offices, discussion of these moot considerations, without effective context, could only bespeak the possibility of a sentence short of life in prison. .

The judge inadvertently compounded the confusion. Without asking Johnson about what the prosecutor had just said, or whether Johnson understood the mandatory life sentence, the judge discussed discretion and the Guidelines, and the court’s ability to sentence “below the Guidelines or [e]ven outside of the Guidelines depending upon the facts...App. 32. Everything the court said was accurate, but the better Johnson understood those points, the less he could appreciate that he would be sentenced to life, no matter what. So when Johnson confirmed his understanding, all he could have understood is that judges generally have considerable discretion in sentencing — not that in his sentencing the judge would have none whatsoever.

The prosecutor’s long and technical explanation of the Sentencing Guidelines described several widely-varying potential sentences. When at length the prosecutor came around to saying that the mandatory sentence “trumps” the other potential sentences, it was at cross-purposes to the earlier discussion. Even the government conceded in its brief, Gov. Br. 33 n.ll, and at oral argument that it would have been better to clarify the mandatory minimum. Explaining the statutory minimum in terms the defendant would understand was not just advisable, but essential to a valid plea.

The prosecutor’s recitation would be unremarkable to a lawyer or a judge who is accustomed to calculating a Guidelines range at every plea hearing; indeed, although the Guidelines have been advisory since United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), district courts are still required by statute to “consider” them at sentencing, 18 U.S.C. § 3553(a)(4), and the Federal Rules of Criminal Procedure require judges to explain this obligation to defendants and to determine that they understand it before accepting a guilty plea, Fed. R. Crim. P. ll(b)(l)(M). The district court therefore can hardly be faulted for including this discussion at the plea hearing, as is customary and generally required. But the defendant’s understanding remains the paramount consideration. See United States v. Maher, 108 F.3d 1513, 1521 (2d Cir. 1997) (“What is essential ... is that ... the defendant actually understands.”).

Discussion of several “possible” sentences, notwithstanding their definite inapplicability to the defendant, undermined the plea, which can be valid only if the defendant has “sufficient awareness of the ... likely consequences.” Brady, 397 U.S. at 748, 90 S.Ct. 1463. The district court should have avoided confusion by clearly and unambiguously telling the defendant that, notwithstanding everything else being said, the consequence of his guilty plea would be a life sentence, period.

II

A remarkable feature of Johnson’s guilty plea, which seems to have gone unnoticed or unmentioned at his plea hearing, is that Johnson evidently stood to gain nothing from it. He had a constitutional right to a trial, and thereby at least a chance of acquittal. Criminal defendants' routinely waive that right and plead guilty in order to benefit from an offense-level reduction for acceptance of responsibility under § 3E1.1 of the Sentencing Guidelines, or to avoid more serious charges pursuant to a plea agreement. But Johnson had no plea agreement and the mandatory life sentence mooted any offense-level benefit. His options, if he had understood them, were to plead guilty and receive a life - sentence, or to proceed to trial and receive a life sentence if convicted. The latter might not turn out to be much better than the former, but it is no worse, and it offers at very least a bargaining chip. Why, then, would Johnson take a naked guilty plea?

Johnson’s letter seeking to withdraw his plea states that he would not have pleaded guilty if he had understood the mandatory sentencing consequence because he had “everything to gain going to trial versus just accepting a life sentence.” And of course he is correct. In light of the circumstances, and absent any explanation, the plea appears on its face irrational. There might be some motive for a knowing and intelligent waiver in this situation, but none is obvious, and the district judge did not attempt to elicit one. The district court erred by failing to determine that the waiver was knowing and intelligent, “with sufficient awareness of the relevant circumstances and likely consequences.” Brady, 397 U.S. at 748, 90 S.Ct. 1463.

The government contends that imposition of the statutory penalty was “fairly communicated” to Johnson when the prosecutor stated that the statutory sentence “trumps” the guidelines. A footnote in the government’s brief offers the breathtaking understatement that “[t]his is not to say that it would have been inadvisable for the district court thereafter to insure that Johnson understood that the statutory mandatory minimum term of imprisonment was the guidelines sentence.” Gov. Br. 33 n.ll. Considering the context of the long and technical allocutions and the judge’s discussion of (inapplicable) discretion, it is a dubious proposition that anything was “fairly communicated”; but in any case, the district court was obligated to determine that the defendant actually understood. And he needed to understand not just that the mandatory minimum “was the guidelines sentence” (which implies that the judge has discretion to depart from it, since the Guidelines are advisory) but that it was the actual and inevitable sentence. “[A] plea of guilty is more than an admission of conduct; it is a conviction.” Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). It is “a grave and solemn act to be accepted only with care and discernment.” Brady, 397 U.S. at 748, 90 S.Ct. 1463. And “it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

The only way to ensure that such a seemingly irrational plea is made knowingly is to tell the defendant clearly and unambiguously that the judge will have no discretion at sentencing, and that accepting the plea will result in no less than the mandatory sentence — in this case, to tell Johnson that pleading guilty means he will be sentenced to life in prison and that no other outcome is possible. The district judge was required to determine that Johnson understood this. If the judge had explained it, it is unlikely that Johnson, if rational, would have taken the plea. It was clearly not entered voluntarily, knowingly, and intelligently.

Accordingly, we vacate the judgment of conviction and the plea underlying it. Because we hold that it was error to accept and enter Johnson’s guilty plea, we do not reach any arguments he raises with respect to the supposed failure to hold a hearing on his letter motion.

Ill

We usually remand cases “without any directions or suggestions as to the judge before whom they are to be conducted.” United States v. Robin, 553 F.2d 8, 9 (2d Cir. 1977). But there are circumstances in which:

both for the judge’s sake and the appearance of justice, an assignment to a different judge is salutary and in the public interest, especially as it minimizes even a suspicion of partiality. In such circumstances our remand does not imply any personal criticism of the trial or sentencing judge....
[T]he principal factors considered by us in determining whether further proceedings should be conducted before a different judge are (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

Id. at 10 (quotations and citations omitted).

The first factor is either neutral or weighs only lightly in favor of reassignment in this case. The original judge did not rely on erroneous factual findings or on evidence that must be rejected. On remand, he would need to put out of his mind his earlier acceptance- of Johnson’s guilt and any adverse findings from the presentence investigation report; but he would not reasonably be expected to have substantial difficulty doing so.

We nevertheless find, on the basis of the second factor taken in conjunction with the third, that it would be “salutary and in the public interest” for the case to be reassigned “to preserve the appearance of justice.” If Johnson does proceed to trial, the appearancé of justice would best be preserved if he can do so before a judge who has not already accepted his guilt. Even assuming, as we do, that the original judge would be able to put earlier proceedings out of his mind and preside fairly, the “countervailing considerations of efficiency and feasibility” are weak in this case. Id. at 11. Johnson pleaded guilty without extensive earlier proceedings and the case does not appear to be factually complex, so there is no indication that the original judge “has gained familiarity with a detailed factual record” that would be wasteful for another judge to replicate. Id. at 10. Reassignment would therefore not “entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.” Id.

Accordingly, we direct that the case be reassigned on remand.

CONCLUSION

For the foregoing reasons, we vacate the judgment of the district court and the guilty plea, direct that the case be reassigned, and remand for further proceedings consistent with this opinion.

      . The drug quantities alleged in the indictment were 280 grams or more of cocaine base; 5 kilograms or more of cocaine; 1,000 kilograms or more of marijuana; and 100 grams or more of heroin.

      . The judge also rejected Johnson's pro se motion on the grounds that: (i) it offered no facts concerning his actual innocence nor did it even allege he was innocent; and (ii) four months passed between his plea and the pro se letter, a significant span of time that typically weighs against granting the motion. Neither of these grounds is persuasive, particularly in light of the deference typically afforded to pro se litigants.

      . The Supreme Court has interpreted this requirement as a direction that "district court[s] should begin all sentencing proceedings by ' correctly calculating the applicable Guidelines range.” Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

      . The government supports its position with a citation to United States v. Rodriguez, 725 F.3d 271 (2d Cir. 2013), but that case is inapposite. The defendant argued that delegating the explanation of penalties to the prosecutor violated Rule 11, and we held that he understood his sentencing exposure and that the delegation "did not affect his decision to plead guilty.” Id. at 276. Johnson, by contrast, likely would not have pleaded guilty if he had understood that doing so would necessarily result in a life sentence; and we hold that the district court violated Rule 11 not by delegating the explanation of the penalties to the government, but by failing to ensure that Johnson understood them.