Case Information
*1 Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Dеfendant–Appellant Francisco Antonio Colorado Cessa pleaded guilty to one count of conspiracy to bribe a public official. Colorado moved to withdraw his guilty plea, but the district court denied the motion and sentenced Colorado to sixty months of imprisonment. Colorado appeals, challenging the district court’s denial of his withdrawal motion. For the reasons set out below, we REVERSE and REMAND.
I. Factual and Procedural Background
On October 1, 2013, Defendant–Appеllant Francisco Antonio Colorado Cessa (Colorado) was indicted by a grand jury and charged—along with two co-defendants—with one count of conspiracy to bribe a public official, in violation of 18 U.S.C. § 371, and one count of bribery of a public official, in violation of 18 U.S.C. § 201. The indictment alleged that the defendants sought to bribe a United States district judge in exchange for Colorado receiving a lesser sentence on Colorado’s рrevious conviction for conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h).
Prior to trial, Colorado and his co-defendants reached global plea agreements with the Government. Colorado’s agreement provided that, in exchange for pleading guilty to the count of conspiracy to bribe a public official, the Government would dismiss without prejudice the count of bribery of a public official. Each of the three co-defendants’ plea agreements provided that “[t]he terms of this agreement [are] predicated upon acceptance by all three defendants of their respective plea agreements.”
On March 12, 2014, Colorado consented to enter his guilty plea before a magistrate judge. Colorado’s consent form indicated that he would “be advised of [his] rights and enter a voluntary plea of guilty before a United Statеs Magistrate Judge . . . subject to the approval of the United States District Court.” At the hearing before the magistrate judge on the same day, Colorado and his co-defendants pleaded guilty following the Rule 11 plea colloquy administered by the magistrate judge. The magistrate judge stated at the hearing that he would “recommend to [the district court] that [Colorado’s] plea of guilty be accepted.” The magistrate judge further issued a report аnd recommendation as to all three co-defendants, stating “[t]he Magistrate Court RECOMMENDS that the District Court accept each of the above-named defendant’s plea of guilty and enter final judgment of guilt against the defendant.” Colorado did not file any objections to the report and recommendation.
The district court initially scheduled sentencing for Colorado and his co- defendants for June 27, 2014. On May 21, 2014, the district court sua sponte reset sentencing for July 14, 2014, аnd in response, Colorado requested a sixty- day continuance of sentencing due to his counsel’s scheduled vacation. The district court granted the continuance and set Colorado’s sentencing for October 20, 2014.
The district court proceeded with the sentencing of Colorado’s co- defendants on July 22, 2014. At that hearing, the district court accepted both co-defendants’ plea agreements and sentenced the co-defendants, pursuant to their plea agreements, to one year and one day imprisonment. The district court gave the co-defendants credit for time served. In the concurrent minute entries filed in the district court’s docket, the court indicated that it had accepted the guilty pleas of both co-defendants. The court neither addressed Colorado’s plea, nor mentioned Colorado at all, during this hearing or in the minute entries. The cо-defendants completed their sentences and were deported in September 2014.
After the probation office filed a Presentence Investigation Report (PSR), Colorado’s counsel filed two separate motions for extensions of time to file objections to the PSR, stating that counsel needed additional time to review the PSR and complete the objections. The district court granted both motions, ultimately resetting the deаdline for objections to November 10, 2014. The district court also reset Colorado’s sentencing for December 19, 2014.
On December 4, 2014, Colorado moved to withdraw his guilty plea pursuant to Federal Rule of Criminal Procedure 11(d)(1), contending that the district court had not yet accepted his plea. The Government below agreed that Colorado had an absolute right to withdraw his plea and thus “request[ed] that [Colorado] should be allowed to withdraw his рlea and proceed to trial.” [2] However, the district court denied Colorado’s motion in a written order, reasoning that Fifth Circuit precedent indicated that a defendant’s guilty plea may be implicitly accepted by a district court. The district court concluded that “there is clear evidence of actual, or most certainly implied, acceptance of [Colorado’s] plea.” The district court noted that a single report was made for all three defendants, that the report was accepted at the July 22, 2014, sentencing hearing as to Colorado’s co-defendants, and that the “Magistrate’s Recommendation regarding [Colorado] would have been formally accepted but for the continuances.” “By accepting the other defendants’ pleas,” the district court reasoned, “the court signaled in no uncertain terms that it approved оf [Colorado’s] plea deal as well as that of the others.” Furthermore, “by repeatedly requesting the continuances without any indication that he was contemplating a plea withdrawal, [Colorado] appears to have concurred with the court’s tacit acceptance of his guilty plea.” [3]
On February 2, 2015, the district court sentenced Colorado to a term of sixty months of imprisonment, the statutory maximum. Colorado timely appeals.
II. Standard of Review
To begin, the parties dispute the appropriate standard for reviewing the district court’s order denying a motion to withdraw a guilty plea. The Government argues that this court reviews the decision for an abuse of discretion. Colorado counters that the decision should be reviewed de novo .
“This [c]ourt reviews a district court’s decision to deny a motion to
withdraw a guilty plea for abuse of discretion.”
United States v. McKnight
, 570
F.3d 641, 645 (5th Cir. 2009). In the typical case, a defendant moves to
withdraw his or her guilty plea after the district court accepted the plea but
prior to sentencing.
E.g.
,
United States v. Harrison
,
Instead, Coloradо argues that, under Federal Rule of Criminal
Procedure 11(d)(1), he may withdraw his plea because the district court never
accepted it. Rule 11(d)(1) provides that “[a] defendant may withdraw a plea of
guilty or nolo contendere . . . before the court accepts the plea, for any reason
or no reason.” Fed. R. Crim. P. 11(d)(1). “Rule 11(d)(1) is an absolute rule: a
defendant has an absolute right to withdraw his or her guilty plea before the
court acceрts it.”
United States v. Arami
,
III. Discussion
Federal Rule of Criminal Procedure 11(d) was amended in 2002 to allow
a defendant to withdraw a guilty plea “for any reason or no reason” before the
court accepts the plea. Fed. R. Crim. P. 11(d)(1);
Arami
,
Arami provided the Fifth Circuit with the first “occasion to expound upon the meaning of Rule 11(d)(1).” , 536 F.3d at 482 . In Arami , the defendant consented to having his Rule 11 plea colloquy hearing and to pleading guilty before a magistrate judge. Id. at 481. Afterwards, the magistrate judge prepared a report and recommendation, cоncluding with a recommendation that the district court accept the guilty plea. Id. Before the district judge accepted Arami’s guilty plea, Arami moved to withdraw the plea. Id. The district court denied the motion, accepted the guilty plea, and sentenced Arami. Id. Analyzing the application of Rule 11(d)(1) under the plain error standard (the defendant failed to raise the issue below), this court held that the district court clearly and obviously erred when it denied Arami’s motion to withdraw because “Arami had an absolute right to withdraw his plea.” [6] Id. at 483. According to the court, “the plain language of Rule 11(d)(1) is unambiguous, as it clearly gives defendants an absolute right to withdraw a plea before the district court accepts it.” Id. The court also found that the error affected Arami’s substantial rights and seriously affected the fairness, integrity, or public reputation of the judicial proceeding. Id. at 484–85. Accordingly, the Arami court reversed and remanded to the district court with instructions that the district court allow the defendant to withdraw his plea and proceed to trial. Id. at 485.
The case at hand is materially indistinguishable. Colorado, like Arami, consented to holding his plea colloquy and to pleading guilty before a magistrate judge, after which the magistrate judge merely recommended that the district court accept the plea. And the district court here, like the district court in Arami , took no action with respect to Colorado on the magistrate judgе’s report and recommendation, nor did the court conduct sentencing or any related hearings prior to Colorado’s motion to withdraw. [7] Thus, as in Arami , nothing in the record shows an actual, explicit acceptance of Colorado’s plea by the district court.
The Government argues on appeal, however, that the district court
implicitly
accepted Colorado’s guilty plea. After analyzing cases from other
circuits, this court in
Arami
suggested that a guilty plea could be accepted
either by “explicit language or an implicit acceptance.”
Arami
,
That statement arose in the court’s description of
Head
. The
defendant in
Head
moved to withdraw his plea after the district court held a
plea colloquy but before the district court formally accepted his plea.
Head
,
We need not decide what actions a district court must take during a pleа
colloquy to implicitly accept a plea because, in contrast with the above cases,
the district court here did not conduct the plea colloquy. The
magistrate judge
conducted Colorado’s plea colloquy, but Colorado’s consent form stated that the
plea was still “subject to the approval of the [district court].” And after
conducting the plea colloquy, the magistrate judge only recommended that the
district cоurt accept the plea.
See Dávila-Ruiz
, 790 F.3d at 253 (“[E]ven if
magistrate judges can, by consent, accept pleas in felony cases, that is not what
happened here. The defendant did not consent to acceptance of his plea by the
magistrate judge, and the magistrate judge explicitly confirmed that she was
not accepting the plea.”). Indeed, the courts that have addressed the present
fact pattern—i.e., the denial of a motion to withdraw after the magistrate
judge’s report and recommendation but prior to sentencing or conditional
acceptance of the plea—have concluded that the guilty plea was not accepted
under Rule 11(d)(1). ,
Even if a guilty plea can be implicitly accepted under certain
circumstances, cases from other circuits suggest that such implicit acceptance
did not occur herе. No court has found implicit acceptance absent some
affirmative action on the part of the district court w
ith respect to the specific
defendant at issue
beyond referring a plea colloquy hearing to a magistrate
judge. As noted above, several courts have found implicit acceptance only
where the district court itself conducted the plea colloquy.
E.g.
,
Byrum
, 567
F.3d at 1262;
Battle
, 499 F.3d at 321–22;
Jones
, 472 F.3d at 907–09. Other
cases relied upon by the Government—which, notably, concern the implicit
acceptance of guilty pleas
outside the Rule 11(d)(1) context
—involve statements
or actions by the district court at sentencing implying its acceptance of the
plea.
See, e.g.
,
United States v. Morales-Sosa
,
The circumstances unique to this case likewise do not warrant a different result. The Government argues that the district court implicitly accepted Colorado’s plea by accepting the global plea agreements of Colorado’s co- defendants (who, having served their sentences and having been deported, are now beyond the district court’s reach) and by failing to notify Colorado that the court had rejected Colorado’s plea agreement. Although the district court had already accepted the guilty pleas of Colorado’s co-defendants at an earlier hearing, it made no statements at that hearing regarding Colorado’s guilty plea or plea agreement. The fact that the district court’s acceptаnce of the co- defendants’ pleas may indicate a high likelihood that it would have accepted Colorado’s plea does not change the fact that it had yet to accept Colorado’s plea within the meaning of Rule 11(d)(1). Furthermore, the lack of any signal by the district court that it had rejected Colorado’s plea agreement does not show that the district court implicitly accepted Colorado’s plea. Thе lack of any action or statement by the district court points toward the district court’s inaction on accepting, not the court’s implied acceptance of, Colorado’s plea.
Moreover, to the extent that the Government faults Colorado for failing
to object to the magistrate judge’s report and recommendation, this court has
already rejected the argument that a defendant “‘waived’ his ability to
withdraw his plea by failing tо object to the magistrate judge’s report and
recommendation.” ,
We recognize that the interrelation of the co-defendants’ guilty pleas— each defendant’s plea agreement was predicated on acceptance of the others’— along with the co-defendants’ removal from this country, could perhaps form the basis for an argument based on contract law precluding Colorado from withdrawing his plea. But the “absolute right” to withdraw a guilty plea under Rule 11(d)(1) would prеvail over such an argument. Id.
We conclude that the district court had not accepted Colorado’s guilty plea prior to Colorado’s motion to withdraw his plea. Since “the district court has no discretion to deny a pre-acceptance withdrawal of a guilty plea,” Arami , 536 F.3d at 482 (emphasis added), the district court erred in denying Colorado’s motion to withdraw.
Our analysis does not end there. The Government also contends that the
district court’s failure explicitly to accept Colorado’s plea was a harmless
error.
[9]
We disagree. Rule 11(h) provides that “[a] variance from the
requirements of [Rule 11] is harmless error if it does not affect substantial
rights.” Fed. R. Crim. P. 11(h). The burden is on the Government to show that
the Rule 11 error was harmless.
United States v. Hemphill
,
The Government does not address
Arami
’s statement as to this point,
but rather argues that the harmless error analysis turns on whether the
district court’s error affected Colorado’s decision to plead guilty. The cases the
Government relies on, however, arise in the context of a district court’s failure
to properly accept a
plea agreement
.
Morales-Sosa
,
As this court made clear in
Arami
, a violation of Rule 11(d)(1) differs
from other Rule 11 colloquy errors. The latter involve failures by the district
court to adequately inform the defendant with respect to the defendant’s guilty
plea, and thus it makes sense for the harmless error analysis to turn on
whether that lack of information affected the defendant’s plea decision. But
because the former involves the district court’s denial of “an absolute right to
withdraw,”
Arami
,
IV. Conclusion
For the reasons above, we REVERSE the judgment of the district court and REMAND with instructions to allow Cоlorado to withdraw his guilty plea.
Notes
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.
[1] The district court’s referral order similarly stated that the magistrate judge’s administration of the plea would be “subject to the final approval and imposition of sentence by th[e district] court.”
[2] On appeal, the Government “recognizes that its earlier responsе was in error and now opposes [Colorado’s] motion.” Appellee’s Br. 22 n.10.
[3] The district court also noted that the magistrate judge’s report and recommendation had not been forwarded to it, apparently due to a clerical error.
[4] We therefore do not address the Government’s argument relating to the “fair and just reason” requirement under Rule 11(d)(2).
[5] Other circuits addressing pre-acceptance withdrawals of pleas under Rule 11(d)(1)
have adopted a
de novo
standard of review.
United States v. Dávila-Ruiz
,
[6] Since , the Fifth Circuit has rеaffirmed the “absolute, unqualified right”
embodied in Rule 11(d)(1).
United States v. Escobedo
,
[7] At the July 22, 2014, sentencing hearing, the district court accepted the magistrate judge’s combined report and recommendation as to Colorado’s co-defendants , but the court never addressed Colorado’s plea, nor even mentioned Colorado, during this hearing or in its related docket entries.
[8] The failure of the clerk’s office to forward the hard copy of the report and recommendation to the district court is a circumstance entirely beyond Colorado’s control and does not factor into our analysis.
[9] This court has discretion to consider the harmless error issue because it was first
raised in the appellee’s brief.
See United States v. Ramirez
,
[10] ’s analysis of whether substantial rights were affected under plain error review does not materially differ from the analysis under harmless error. See United States v. Olano , 507 U.S. 725, 734–35 (1993) (noting that the harmless error and plain error “require[] the same kind of inquiry,” but that the Government, rather than the defendant, bears the burden of persuasion under harmless error).
[11] So far as those cases may touch upon implicitly accepted guilty pleas, we need not address whether an implicit acceptance of a guilty plea is a harmless error because, as discussed above, the district court failed to take any action even implicitly accepting Colorado’s plea.
[12] There does not appear to be any authority supporting the Government’s argument that Colorado’s co-defendants receiving the bargained-for benefit of their plea agreements affects this harmless error analysis.