Guilty Pleas - Right to Withdraw

United States v. Dominguez Benitez, 542 U.S. 74 (2004)

If a trial court fails to advise the defendant that he will not have the right to withdraw his plea if the court rejects the government’s recommendation (as required by Rule 11), and the defendant does not object to this Rule 11 violation, the plain error standard applies. Moreover, in order to set aside the guilty plea under this standard, the defendant must show that he would not have entered a guilty plea had the trial court properly advised him. In other words, there must be a prejudicial “effect” of the trial court’s error; and absent a finding that the defendant would not have entered a guilty plea had he been properly advised, there can be no such showing.

United States v. Hyde, 520 U.S. 670 (1997)

When a guilty plea is entered pursuant to Rule 11(e)(1)(A), the government generally agrees to dismiss certain counts as part of the plea agreement. The court then will accept the guilty plea and delay accepting the agreement until after the pre-sentence report is completed. Between the time that the plea is entered and the court decides whether to accept the agreement, the defendant may only withdraw the guilty plea if he can demonstrate a “fair and just reason” pursuant to Rule 32(e). If the court decides to reject the agreement, however, the defendant must be afforded an opportunity to withdraw the plea. Rule 11(e)(2).

United States v. Fard, 775 F.3d 939 (7th Cir. 2015)

The fact that a defendant is an educated businessman does not excuse the trial court’s failure to explain the nature of the charges and ensure that the defendant understands concepts such as “intent to defraud” and “fraudulent scheme.” In this case, the defendant was educated, but English was not his native language. The defense counsel answered most of the judge’s questions during the plea colloquy. He sought to withdraw his plea on the basis that he did not understand the nature of the charges. The Seventh Circuit held that the defendant was entitled to withdraw his plea based on the trial court’s failure to explain the concepts of fraud and the nature of the crime to which he was pleading guilty.

United States v. Adame-Hernandez, 763 F.3d 818 (7th Cir. 2014)

When a judge accepts a guilty plea that is part of a binding, 11(c)(1)(C) plea, but defers accepting the agreement, if the court later decides to reject the agreement, all that the court may do is offer the defendant the opportunity to withdraw the plea. The district court is not authorizecd to withdraw or otherwise negate the plea. Here, after rejecting he plea agreement, the court withdrew the plea itself.

United States v. Urias-Marrufo, 744 F.3d 361 (5th Cir. 2014)

Soon after entering a guilty plea, the defendant obtained new counsel and promptly filed a motion to withdraw the guilty plea on the grounds that her former counsel had not informed her that deportation was a virtual certain consequence of the guilty plea. The Fifth Circuit held that this was a valid basis for moving to withdraw the guilty plea and the lower court’s holding that Padilla only applied to §2255 proceedings was erroneous.

United States v. Benard, 680 F.3d 1206 (10th Cir. 2012)

The defendant was stopped on the road on suspicion that he was involved in a drug transaction. Eventually, he was arrested. He was asked, “Will I find anything in the car when I search it?” The defendant responded that there was a gun in the car. The question qualified as “interrogation” and was not subject to the public safety exception. Because this appeal followed a conditional guilty plea, the proper remedy was to remand the case and allow the defendant to withdraw his plea, if he chooses to do so.

United States v. Heid, 651 F.3d 850 (8th Cir. 2011)

The defendant was the mother of a drug dealer. When her son was in jail, she agreed to help him post bond. She retrieved several thousand dollars that she acknowledged was derived from drug dealing and gave the money to bondsmen to post the bond. She was indicted for conspiracy to launder money, with the object of the conspiracy being a § 1956(a)(1)(B)(i) violation (i.e., concealment money laundering). She entered a guilty plea with the factual basis essentially including no more facts than recited above. She later moved to withdraw her plea on the basis that the factual basis was insufficient to set forth a crime (i.e., there was no evidence of an intent, or an agreement, to conceal the proceeds). The Eighth Circuit held that the trial court erred in failing to grant the motion to withdraw the plea.

United States v. Mendez-Santana, 645 F.3d 822 (6th Cir. 2011)

A defendant has a right to withdraw a guilty plea under Rule 11 if the trial court defers accepting the plea. In this case, the trial judge expressly said that he was going to “hold off” on accepting the guilty plea because of the absence of a plea agreement and questions about the underlying facts. The defendant thereafter attempted to withdraw his plea, which he had an unqualified right to do. Denying his motion was error.

United States v. Tyerman, 641 F.3d 936 (8th Cir. 2011)

The defendant and the government entered into a Rule 11(c)(1)(C) “binding” plea agreement and the defendant was expressly told at the time he entered the plea that he could withdraw the plea if the court did not accept the agreement. The trial judge did not accept the plea at the time the plea was entered, repeatedly stating that he was deferring making that decision until after he read the PSR. Prior to sentencing, the defendant announced that he wished to withdraw the plea. When he made this announcement, the court had not yet accepted the plea. The Eighth Circuit held that the defendant had the right to withdraw the plea, even though the trial judge promptly stated that he would accept the plea.

United States v. Bonilla, 637 F.3d 980 (9th Cir. 2011)

The defendant was aware of the possible deportation consequences of entering a plea, but counsel failed to give him advice – that is, that deportation was a certainty. In fact, the attorney was not aware that the defendant was not a citizen. The Ninth Circuit held that the defendant should have been allowed to withdraw his plea: “A defendant demonstrates a ‘fair and just reason’ for withdrawing a guilty plea in circumstances in which the proper legal advice could have at least plausibly motivated a reasonable person in the defendant’s position not to have pled guilty.”

United States v. Lewis, 633 F.3d 262 (4th Cir. 2011)

The plea agreement in this case contained language that indicated that it was a “binding” plea agreement (Rule 11(c)(1)(C)), because it said that the sentence “shall run concurrent” with a state sentence currently being served, rather than “the government would recommend that the sentence run concurrent” with the state sentence. Other parts of the plea agreement stated that the government “would recommend” certain Guideline decisions. The court’s colloquy with the defendant at the plea was also ambiguous. The Fourth Circuit holds that the judge should have treated this portion of the plea as binding and given the defendant the right to withdraw the plea.

United States v. Self, 596 F.3d 245 (5th Cir. 2010)

If the district court does not intend to adhere to the terms of a binding plea agreement that was entered pursuant to Rule 11(c)(1)(C), the court must clearly state that the court rejects the plea agreement in toto. In this case, the trial court advised the defendant that the court would accept the plea except as to the sentence on one of the counts. The court may not accept a binding plea in part. This should have been more accurately explained to the defendant so that he could have made a decision whether to withdraw his plea.

United States v. Thompson-Riviere, 561 F.3d 345 (4th Cir. 2009)

The trial court erred in denying the defendant the right to withdraw his guilty plea prior to sentencing. The defendant entered a guilty plea to an illegal re-entry case. Prior to sentencing, a DNA test demonstrated that he may have been the child of an American, which means that he could not be guilty. Based on the possibility of legal innocence, the trial court abused its discretion in denying the motion.

United States v. Arami, 536 F.3d 479 (5th Cir. 2008)

A defendant has an absolute right to withdraw a guilty plea prior to the time that the district court accepts the plea. Rule 11(d)(1). In this case, the plea was entered before a Magistrate and before the district court accepted the plea, the defendant sought to withdraw it. Denying his request was plain error.

United States v. McTiernan, 546 F.3d 1160 (9th Cir. 2008)

If a defendant seeks to withdraw a guilty plea based on a claim that his attorney failed to alert him that incriminating evidence might have been suppressed had a motion been filed, a hearing on this claim should be held. This type of claim can qualify as a “fair and just reason for requesting withdrawal.” Fed.R.Crim.P. 11(d)(2)(B).

United States v. Newbert, 504 F.3d 180 (1st Cir. 2007)

If a defendant withdraws his guilty plea based on newly discovered evidence of his innocence, the government may not invoke the “breach the plea agreement” penalties (such as various rights waivers, including a waiver of Rule 410) that would apply in other situations when the defendant breaches a plea agreement.

United States v. Segarra-Rivera, 473 F.3d 381 (1st Cir. 2007)

Based on the defendant’s pro se statements regarding the inappropriate pressure that counsel placed on him before he relented and signed his guilty plea, there was at least a colorable basis for inquiring into a possible conflict of interest before actually conducting a hearing on the issue of the defendant’s Motion to Withdraw his Guilty Plea.

United States v. Morris, 470 F.3d 596 (6th Cir. 2006)

In this most unusual case, the federal district court acted properly in dismissing the federal indictment because of a breach of the state prosecutor’s agreement to permit the defendant to plead to a state charge. Among other factors the court considered was the fact that the federal prosecutor participated in the state prosecution and plea negotiations.

United States v. Davis, 428 F.3d 802 (9th Cir. 2005)

When a defendant seeks to withdraw a guilty plea based on bad advice from his attorney, Rule 11(d)(2)(B) – formerly Rule 32(e) – does not require that the defendant prove that but for the bad advice, he would not have entered the guilty plea. That would be the standard post-sentencing. After the plea is entered, yet before sentencing, the “fair and just reason” standard in the Rule is less rigorous than the post-sentencing standard. In this case, withdrawal was justified based on the defense attorney’s mischaracterization of the possible sentence.

United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005)

The defendant’s presentation of newly discovered evidence that contradicted evidence of his guilt was a fair and just reason that supported his withdrawal of his guilty plea. When he entered his plea, he entered an Alford-type plea. The Ninth Circuit noted that the newly discovered evidence need not be so persuasive that there is a reasonable probability that the defendant would not be convicted at trial. The court also held that it is not necessary for a defendant to claim actual innocence in order to be entitled to withdraw his guilty plea.

United States v. Patterson, 381 F.3d 859 (9th Cir. 2004)

Fallout from the decision in Ellis, which is annotated below: The defendant in this case entered a guilty plea pursuant to Rule 11(b)(1)(B). The amount of marijuana plants was acknowledged by the government and the defense to be in dispute and would require a hearing at sentencing. After the plea was entered, Apprendi was decided and the government acknowledged that the number of plants became an element of the offense. The district court vacated the plea. The Ninth Circuit held that this was impermissible. Once the plea was entered, only the defendant has the power to withdraw the plea; the court may reject the plea agreement, but it cannot vacate the guilty plea, itself. Vacating the plea in this case violated the Double Jeopardy Clause.

United States v. Bradley, 381 F.3d 641 (7th Cir. 2004)

The defendant entered a guilty plea to carrying a firearm in connection with a drug offense. The factual basis offered by the government recited that the defendant carried the gun in a car that was transporting marijuana. The indictment, however, alleged that he carried the gun in connection with a cocaine offense. The defendant then moved to withdraw the plea on the basis of this variance. The trial court erred in denying the defendant the right to withdraw the plea.

United States v. Lopez (Ramirez), 385 F.3d 245 (2d Cir. 2004)

Pursuant to Rule 11, a defendant who enters a non-binding plea agreement may not withdraw the plea, absent a fair and just reason. This case answers the unusual question, “Can a defendant maintain his guilty plea, but withdraw from the agreement?” The court holds that this is permissible and the trial court should evaluate the defendant’s request under a similar “fair and just reason” approach.

Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004)

The defendant entered a guilty plea to a RICO charge and was sentenced to life. Subsequent developments in the U.S. Supreme Court in other cases cast considerable doubt on the sufficiency of the interstate commerce proof in this case. The Sixth Circuit held that the defendant could challenge his guilty plea based on the change in the law, because the “new” law was sufficient to establish that the defendant was “actually innocent” of the charged offense.

United States v. Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004)

After the defendant entered his guilty plea to a charge of illegal re-entry (but before sentencing), the United States Supreme Court issued its decision in INS v. St. Cyr, 533 U.S. 289 (2001), which held that certain prior orders of deportation were invalid. The Ninth Circuit held that this intervening Supreme Court decision provided a “fair and just” reason for withdrawing the plea.

Ellis v. U.S. District Court, 356 F.3d 1198 (9th Cir. 2004) (en banc)

When a trial court accepts a guilty plea, but subsequently rejects the plea agreement, the ball is then in the defendant’s court as to whether he wishes to withdraw his plea or go forward with sentencing, without the plea agreement in place. The trial court may not simply vacate the guilty plea and proceed to trial. See Rule 11(c)(5), Fed.R.Crim.P. The court reached this conclusion after reviewing the analysis of the Supreme Court in United States v.Hyde, 520 U.S. 670 (1997), which also explained that a trial judge may accept a guilty plea and defer acceptance of the plea agreement; but if the agreement is rejected, then the defendant must be given an opportunity to withdraw the plea. The Ellis court also held that upon remand, the case would be assigned to a different judge.

United States v. Ventura-Cruel, 356 F.3d 55 (1st Cir. 2003)

The defendant entered into a plea agreement and entered his plea. However, his debriefings went poorly and the court ultimately set aside the guilty plea, because the court concluded that based on the defendant’s statements, there was no longer a factual basis for the plea. During the ensuing trial, the government introduced a letter written by the defendant during the debriefings (it was essentially the “acceptance of responsibility” letter) that was incriminating. The First Circuit held that admitting this letter was reversible error. Technically, Fed.R.Evid 410 did not apply, because the defendant’s statement was not anticipatory to, or part of, the plea negotiation process. The court concluded that allowing the government to use the statement gave them the benefit of the bargain while depriving the defendant of the benefit of the bargain. See also United States v. Escamilla, 975 F.2d 568 (9th Cir. 1992).

United States v. Head, 340 F.3d 628 (8th Cir. 2003)

Pursuant to Rule 11(d), which replaced Rule 32(e) in December, 2002 in governing withdrawals of pleas, a plea may be withdrawn before the court accepts the plea, for any reason or for no reason.

United States v. Couto, 311 F.3d 179 (2d Cir. 2002)

The trial court denied the defendant’s motion to withdraw her guilty plea, relying in part on possible evidence to be offered by the government. This was an inappropriate basis for denying relief pursuant to Rule 32(e).

United States v. Reyes, 313 F.3d 1152 (9th Cir. 2002)

The defendants entered binding Rule 11(e)(1)(C) pleas. They failed to live up to their cooperation obligations, however. In this situation, the defendants must be afforded the right to withdraw their pleas prior to sentencing. The trial court may not simply exceed the agreed-upon sentence limit. The trial judge is not empowered to unilaterally modify a Rule 11(e)(1)(C) binding plea agreement.

United States v. Alvarez-Tautimez, 160 F.3d 573 (9th Cir. 1998)

Two defendants were arrested for smuggling marijuana. Alvarez entered a guilty plea, but the court had not yet accepted the plea. Thereafter, the co-defendant won his motion to suppress – a motion that would have succeeded for Alvarez, as well. The government had already indicated that it would not appeal the co-defendant’s successful motion. Nevertheless, Alvarez’s counsel did not move to withdraw the guilty plea and re-assert a Motion to Suppress. This was ineffective assistance of counsel. Because the court had not accepted the guilty plea yet, the defendant was entitled to withdraw the plea. The case would then have been dismissed.

United States v. Shaker, 279 F.3d 494 (7th Cir. 2002)

The defendant entered a guilty plea and the district court explicitly stated that the court was deferring accepting the guilty plea and plea agreement until after the court reviewed the presentence report. When the PSR was issued, the defendant, disappointed in some of its findings, moved to withdraw the guilty plea. The Seventh Circuit held that he had an absolute right to do so, because the trial court deferred accepting the plea. The requirement that there be a fair and just reason is not applicable when the district court has not accepted the guilty plea.

United States v. Ribas-Dominicci, 50 F.3d 76 (1st Cir. 1995)

In deciding whether to permit a defendant to withdraw a guilty plea, prior to sentencing, Rule 32(d) directs the court to grant the motion if there is a showing of a fair and just reason. One such reason would be a showing that there was a core violation of Rule 11. A core violation would include an improper description of the mens rea element of the offense. Here, the court instructed the defendant that he could be found guilty of the theft offense only if he acted willfully – that is “the government has to prove that at some point in time you had some reasonable understanding that what you were about to do and actually did was wrong, was marginal conduct, was questionable . . . In other words, that you had a – had or should have had a pretty good understanding that this was wrong and against the law.” This was an inaccurate statement of the willfulness requirement of the theft offense. See Morissette v. United States, 342 U.S. 246 (1952). Consequently, when the defendant moved to withdraw the plea prior to sentencing, the trial court erred in denying the motion.

United States v. DeBusk, 976 F.2d 300 (6th Cir. 1992)

The failure to advise the defendant that if the court did not accept the recommendation, the defendant would not be permitted to withdraw his plea was harmful error. The court had advised the defendant that he would be permitted to withdraw his plea if the court rejected the plea agreement. The plea called for the prosecutor to recommend probation. The judge imposed a one-year sentence and explained that he accepted the plea agreement, that is, he considered the government’s recommendation, but he felt a one-year sentence was more appropriate. Though the court is not obligated to permit a defendant to withdraw his plea if a sentence is longer than expected or longer than recommended by the prosecutor, the misleading advice given to the defendant by the court at the time of the plea required that the defendant be permitted to withdraw his plea in this case. The court’s contradictory advice that he was not “bound by the recommendation” was not a cure for the incorrect advice.

United States v. Kemper, 908 F.2d 33 (6th Cir. 1990)

The trial court properly rejected a plea agreement where the pre-sentence report showed that the stipulated drug quantity was inaccurate. However, once rejecting a plea agreement, the trial court should have afforded the defendant the right to withdraw his plea, rather than simply imposing sentence.

United States v. Groll, 992 F.2d 755 (7th Cir. 1993)

After tendering a guilty plea, the defendant moved to withdraw the plea, arguing that she was entrapped and that the pistol with which she was charged was not hers. The district court denied the motion to withdraw without reason. The Seventh Circuit reversed: the record in this case established a colorable claim of entrapment based on the repeated calls of the informant to the defendant to engage in a marijuana transaction. In denying a motion to withdraw a guilty plea, the district court must make findings as to why the defense now being asserted would not be available to the defense at trial.

United States v. Chan, 97 F.3d 1582 (9th Cir. 1996)

When a defendant enters a “B”-type agreement, that is, a plea agreement which includes a non-binding recommendation by the government, the district court should caution the defendant that the court is not bound by the recommendation and the defendant will not be allowed to withdraw the plea if the recommendation is rejected. The court failed to caution the defendant about this principle during the acceptance of the plea, but it was harmless error in this case, because the court did accept the recommendation.

United States v. Washman, 66 F.3d 210 (9th Cir. 1995)

The defendant entered into a binding plea agreement pursuant to Rule 11(e)(1)(c). Prior to the time that the district court accepted the plea, (but after the magistrate agreed to recommend that the plea be accepted by the district court) the defendant moved to withdraw the plea. Denying this motion was improper. Prior to the time the plea is accepted by the district court, the defendant has a right to withdraw from the agreement.

United States v. Scott, 884 F.2d 1163 (9th Cir. 1989)

The defendant moved to dismiss an indictment which had been returned against him. He subsequently pled guilty to a substituted information, conditioned on his right to appeal the denial of his motion to dismiss. The defendant should be provided an opportunity to withdraw his guilty plea in order to perfect his appeal of the invalid indictment.

United States v. Kummer, 89 F.3d 1536 (11th Cir. 1996)

Even where a plea is taken pursuant to Rule 11(e)(1)(B) – which involves the government making a non-binding recommendation without the defendant retaining the right to withdraw the plea – if the court, when it takes the plea, advises the defendant that he could withdraw the plea if the recommendation were not followed, the defendant must be given that opportunity.

United States v. Bell, 22 F.3d 274 (11th Cir. 1994)

The defendant was charged with violating 18 U.S.C. §664, which outlaws embezzling money from a fund covered by ERISA. Many of the counts, including portions of the conspiracy count, alleged that the defendant embezzled money from a fund which was not, in fact, covered by ERISA. After the defendant entered a guilty plea, he sought to withdraw the plea based on this defect in the indictment. The trial court erred in denying the defendant’s motion to withdraw the plea.

United States v. Idowu, 105 F.3d 728 (D.C.Cir. 1997)

The defendant was charged with unlawful presence in the United States within five years of being deported. 8 U.S.C. §1326. Arguably, he was permitted to be present, pursuant to a statute which allows a deported alien to re-enter, 8 U.S.C. §1182(a). Whether this was a viable defense or not, the defendant, after having entered a guilty plea, should have been allowed to withdraw the plea to mount this defense.

United States v. Ford, 993 F.2d 249 (D.C.Cir. 1993)

After entering a guilty plea, but before sentencing, the defendant moved to withdraw his plea. He asserted his innocence, claiming that the drugs and gun found in a room belonged to his brother, not him. The trial court abused its discretion in denying the defendant’s motion to withdraw the plea. The government’s proof failed to establish the defendant’s possession of the gun other than his proximity to the gun. At the plea colloquy, the government did not establish the factual basis for the gun count and the court failed to adequately inform the defendant of the elements of the offenses to which he was entering his plea.