UNITED STATES of America, Appellee v. Dorian R. JONES, Appellant.
No. 05-3166
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 9, 2006. Decided Jan. 5, 2007.
471 F.3d 905
VII.
Consistent with Whitman and the Act, we grant the State petition and the Environmental petition, except with respect to the withdrawal of the one-hour NAAQS; we also deny the Industry petitions and we dismiss the Ohio petition. Accordingly, we vacate the 2004 Rule and remand the matter to EPA.
John P. Mannarino, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney at thе time the brief was filed, and Roy W. McLeese, III, Assistant U.S. Attorney.
Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Concurring opinion filed by Circuit Judge HENDERSON.
TATEL, Circuit Judge:
After pleading guilty to being a felon in possession of a firearm, appellant sought to withdraw his plea and proceed to trial. The district court denied the request, finding that because it had previously accepted the plea, appellant could withdraw it under
I.
In еarly 2005, a federal grand jury indicted appellant Dorian Jones for possession with intent to distribute cannabis, use of a firearm in furtherance of a drug trafficking offense, and possession of a firearm by a convicted felon. In a written deal with prosecutors, Jones agreed to plead guilty to the third chаrge-illegal firearm possession-in exchange for the government dropping the other two. The parties also agreed on a sentencing range of 41 to 51 months. Under
The district court conducted a plea hearing in early June, during which it reviewed the factual basis for the plea, explained to Jones the rights he relinquished by pleading, and ensured that his plea was voluntary, knowing, and intelligent. See
Hearing this explanation of the plea process, Jones‘s attorney asked the сourt to “accept the agreement today before he pleads guilty or wait for the presentence report and then plead guilty on that.” Id. at 32. The court rejected this proposal, explaining that “we can‘t [sic] a presentence report without a guilty plea and I can‘t accept the plea agreement without a presentence report.” Id. at 32-33. The court said it would therefore “conditionally accept the guilty plea subject to review of the plea agreement and the presentence report that is prepared.” Id. at 33. In response, Jоnes‘s attorney urged the court to commit to a sentencing range before Jones entered his plea, requesting that the parties “mak[e] a proffer as to what we believe the range is going to be once the presentence report is returned and the court make its decision today.” Id. at 33-34. Again demurring, the court reiterated its need to see a presentence report before it could pass on the propriety of the agreed-upon range.
Having twice heard the court‘s explanation of the plea process, Jones pleaded guilty. The court then “conditionally acceptеd [the plea] subject to review of the plea agreement and the presentence report.” Id. at 41.
When time came for sentencing, though, Jones changed his mind. Midway through the sentencing hearing, as the district court and attorneys discussed the appropriate guidelines range, Jones, through counsel, asked to withdraw his plea. Addressing the court himself, Jones said he thought the plea would not be considered final until the court accepted the plea agreement.
Following a brief recess, the district court explained that under
At a later status conference the court informed the parties that, based on its review of the transcript and the parties’ briefs, it believed it had in fact accepted the guilty plea at the June hearing. The court explained that under United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997), a district court may accеpt a guilty plea and at the same time defer decision on the underlying plea agreement-precisely what it had done by conditionally accepting Jones‘s plea. Because Jones “ha[d] not offered [a fair and just] reason [for withdrawal]” or “assert[ed his] innocence,” and becausе “significant time ha[d] elapsed since the plea before the withdrawal was raised,” the court denied Jones‘s motion to withdraw the plea. Tr. of Sept. 7, 2005 Hr‘g at 5. The district court subsequently accepted the plea agreement and sentenced Jones to 48 months. Tr. of Sept. 23, 2005 Hr‘g at 13.
Jones appeals, arguing that the district court should have granted his motion to withdraw the plea.
II.
Construing an earlier version of the Federal Rules of Criminal Procedure, the Supreme Court in Hyde clarified that guilty pleas exist independently from plea agreements on which they rest, explaining that “the Rules nowhere state that the guilty plea and the plea agreement must be treated identically.” 520 U.S. at 677, 117 S.Ct. 1630. As a result, the Court ruled, a district court may accept a guilty plea without simultaneously accepting the underlying plea agreement. Read in conjunction with the current Rules, which were clarified to reflect Hyde‘s holding, see
Although Jones‘s brief is far from clear, we discern two primary arguments. First, he contends that because the district court accepted the guilty plea only “conditionally,” it did not accept it for purposes of
Second, Jones argues that the district court never actually accepted the plea, factually distinguishing this case from Hyde. In support, Jones alleges that the district court “repeatedly acknowledged the unencumbered ability (or right) of the defendant to withdraw the guilty plea up until the time of its acceptance and the commitment by the Court to be bound to all of its terms.” Appellant‘s Br. 13.
Until now, we have had no occasion to say what standard of review applies to a district court‘s determination of whether it accepted a plea. The government urges us to review for abuse of discretion, citing United States v. West, 392 F.3d 450 (D.C.Cir.2004), for the proposition that “[t]his Court ‘review[s] refusals of motions to withdraw [guilty pleas] for abuse of discretion.‘” Appellee‘s Br. 9 (quoting West, 392 F.3d at 455).
The government‘s reliance on West is misplaced. Unlike Jones, West never argued that his plea had not been accepted; rather, he contended that he had offered a fair and just reason for withdrawing his plea after acceptance. West, 392 F.3d at 455-57. Reviewing only for abuse of discretion, we recognized that determining the fairness and justness of a defendant‘s reason is entrusted to the discretion of the district court. Under
The district court itself acknowledged that it “may have used language too loosely” at the plea hearing. Tr. of Aug. 15, 2005 Hr‘g at 34. Indeed, immediately following the plea, the court said it would “defer [its] decision on whether to accept the plea agreement and therefore the guilty plea set out in the plea agreement.” Tr. of June 2, 2005 Hr‘g at 40. Read in isolation, this language suggests that the court may have deferred decision on the plea itself. Read in its entirety, however, the transcript demonstrates the district court not only accepted the plea, but also made clear to Jones he could withdraw his plea only if the court rejected the plea agreement. As described above, before taking the plea the court twice explained that it could order a presentence report-and thus pass judgment on the plea agreement-only if Jones first pleaded guilty and the court accepted that plea. Even more to the point, Jones‘s attorney twice asked the court to accept the pleа agreement contemporaneously with the plea itself. On both occasions, the court declined, citing its need for a presentence report. And then, after Jones entered the plea, the court announced that “the plea of guilty is conditionally accepted subject to rеview of the plea agreement and the presentence report, and I find you guilty.” Id. at 41 (emphasis added). Given this, Jones had no reasonable basis for thinking the court had not accepted his plea. Moreover, contrary to Jones‘s allegation, the district court never intimated that the defendаnt had an “unencumbered ability” to withdraw from the plea. Indeed, the court repeatedly explained that after pleading, Jones could withdraw his plea only if the court rejected the plea agreement.
Under these circumstances, Jones could have withdrawn his plea only by offering a “fair and just reason.”
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring.
The majority is correct that “[u]ntil now we have had no occasion tо say what standard of review applies to a district court‘s determination of whether it accepted a plea.” Maj. op. 907-08. Nor have we occasion now. Whether we review the court‘s decision here de novo, as the majority proposes, or for abuse of discretion, as we hаve reviewed withdrawal denials in the past, see United States v. West, 392 F.3d 450, 455 (D.C.Cir.2004) (“We review refusals of motions to withdraw for abuse of discretion.“), we reach the same result because the district court‘s determination that “the Court did accept the defendant‘s guilty plea” at the June hearing, 9/7/05 Hearing Tr. 4, is neither incorrect as a matter of law nor an abuse of discretion. Thus, we have no need to choose between the two standards to decide the case before us. Further, whether or not we should review de novo the district court‘s legal disposition of a motion to withdraw under
DAVID S. TATEL
UNITED STATES CIRCUIT JUDGE