United States v. Francisco Colorado Cessa, 626 F. App'x 464

Colorado and two co-defendants entered global plea agreements; Colorado pleaded guilty to conspiracy to bribe a public official before a magistrate judge by consent, with acceptance "subject to the approval of the [district] court."
The magistrate judge conducted the Rule 11 colloquy and issued a report recommending the district court accept the pleas; Colorado did not object to the report.
The district court accepted and sentenced the co-defendants at a later hearing but took no action or statements regarding Colorado’s plea before he moved to withdraw.
Colorado moved to withdraw his guilty plea under Fed. R. Crim. P. 11(d)(1) (pre-acceptance absolute right); the Government initially agreed below but later opposed on appeal.
The district court denied the withdrawal, reasoning it had implicitly accepted the plea; Colorado was later sentenced to 60 months and appealed.
The Fifth Circuit reversed and remanded, holding the district court had not accepted the plea before Colorado’s withdrawal motion and therefore erred in denying it; the error was not harmless.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 11(d)(1) gives an absolute right to withdraw a plea before district court acceptance	Colorado: Rule 11(d)(1) is absolute; no discretion to deny pre-acceptance withdrawal	Government: District court implicitly accepted plea, so Rule 11(d)(1) inapplicable	Held for Colorado: Rule 11(d)(1) provides an absolute right; district court had not accepted plea before motion
Whether the district court implicitly accepted Colorado’s plea by magistrate’s report or by accepting co-defendants’ pleas	Colorado: No — magistrate only recommended; referral left acceptance to district court	Government: Acceptance of co-defendants and silence show implicit acceptance of Colorado’s plea	Held for Colorado: No implicit acceptance—no affirmative district court action regarding Colorado’s plea occurred
Standard of review for denial of Rule 11(d)(1) motion	Colorado: De novo for legal question whether plea was accepted	Government: Abuse of discretion	Held: Legal questions reviewed de novo; Fifth Circuit follows Arami and reviews underlying law de novo
Whether district court’s error was harmless under Rule 11(h)	Colorado: Not harmless — denial deprived him of absolute pre-acceptance right to withdraw and go to trial	Government: Any error harmless because plea decision was not affected	Held for Colorado: Not harmless; denial affected substantial rights and barred right to trial

United States v. Arami, 536 F.3d 479 (5th Cir.) (establishes absolute right under Rule 11(d)(1) to withdraw plea before district court acceptance)
United States v. McKnight, 570 F.3d 641 (5th Cir.) (standard for reviewing post-acceptance plea-withdrawal denials)
United States v. Head, 340 F.3d 628 (8th Cir.) (discusses implicit acceptance and deferring acceptance until sentencing)
United States v. Byrum, 567 F.3d 1255 (10th Cir.) (recognizes implicit acceptance where district court conducts colloquy)
United States v. Battle, 499 F.3d 315 (4th Cir.) (addresses presumption of acceptance after Rule 11 colloquy)
United States v. Dávila-Ruiz, 790 F.3d 249 (1st Cir.) (magistrate-only colloquy without defendant consenting to magistrate acceptance does not mean district court accepted plea)
United States v. Escobedo, 757 F.3d 229 (5th Cir.) (reaffirms Arami’s unqualified right under Rule 11(d)(1))
United States v. Hemphill, 748 F.3d 666 (5th Cir.) (government bears burden to show harmless error under Rule 11(h))
Olano v. United States, 507 U.S. 725 (U.S. 1993) (harmless/plain-error framework)
Hyde v. United States, 520 U.S. 670 (U.S. 1997) (acceptance of plea and acceptance of plea agreement can be separated in time)