Court Correctly Holds Defendant Has Absolute Right to Withdraw Guilty Plea Before It's Accepted, But Did It Apply Wrong Standard of Review?

United States v. Arami, No. 07-50536 (5th Cir. July 21, 2008) (Prado, Elrod, Haynes)

This appeal concerns Federal Rule of Criminal Procedure 11(b)(1), which permits a defendant to "withdraw a plea of guilty . . . before the court accepts the plea, for any reason or no reason[.]" Not surprisingly, the court correctly holds that the rule means what it says. Unfortunately, the court creates some confusion with an unnecessary discussion of an question that wasn't at issue and that the court doesn't resolve, and by applying the wrong standard of review.

The procedural posture: Arami agreed to plead guilty to one count of a five-count indictment, in exchange for dismissal of the remaining four counts. He also consented to allowing a magistrate judge take his plea. After the hearing, the magistrate judge recommended that the district judge accept the plea. A couple of months later, Arami filed a motion to withdraw his guilty plea, "asserting his innocence and stating that the allegations contained in the factual basis were incorrect." The district court denied the motion after a hearing. Eight days later, the district court adopted the magistrate judge's recommendation, accepted Arami's guilty plea, and sentenced him to 27 months' imprisonment.

Arami appealed his conviction, arguing that the district court violated Rule 11(d)(1) by refusing to allow him to withdraw his guilty plea. The court of appeals agreed, finding the rule clear: "Rule 11(d)(1) is an absolute rule: a defendant has an absolute right to withdraw his or her guilty plea before the court accepts it." Since the district court didn't accept Arami's guilty plea until eight days after he moved to withdraw it, the district court erred.

That should be the end of it. Unfortunately, the court drops a footnote with some dicta that might create confusion when it comes to determining exactly when a guilty plea has been accepted. The note discusses a couple of Fourth Circuit cases which held that a plea is accepted as soon as the district court completes the Rule 11 colloquy, and that a defendant may consent to having a magistrate judge accept his guilty plea. The court then goes on to say,

Putting the rules from [those cases] together, the Fourth Circuit likely would rule that when a defendant consents to having a magistrate judge perform the plea colloquy and accept the plea, the court has accepted the plea for purposes of Rule 11(d)(1) once the magistrate judge completes the plea colloquy. Regardless, here, both parties concede that Arami did not consent to having the magistrate judge accept his guilty plea, so we leave for another day the questions of whether an acceptance occurs when the court completes the plea colloquy and whether a defendant can consent to having a magistrate judge accept a guilty plea.

Given the potential for this footnote to cause confusion in the application of an otherwise clear rule, the court probably should have waited for a case squarely presenting the question.

Another fly in the soup is the court's use of plain error review. Why plain error review? That's unclear. The court says that, "[b]ecause Arami did not raise any argument involving Rule 11(d)(1) before the district court, this court must review the district court’s decision for plain error[,]" citing Vonn v. United States, 535 U.S. 55 (2002). But why isn't a motion to withdraw the guilty plea enough to raise the issue in the district court? Also, Vonn isn't on point. Vonn involved a guilty plea colloquy in which the district court failed to admonish the defendant that he had a right to be represented by counsel at trial. The Supreme Court held that the defendant's failure to object to a defect in the guilty plea colloquy results in plain error review of that defect on appeal. But Arami complained of a different kind of Rule 11 error: the district court's refusal to allow him to withdraw his plea before it was accepted. If an unsuccessful motion to withdraw the plea isn't sufficient to preserve the error, it's hard to imagine what would be. Cf. Fed. R. Crim. P. 51.

As it is, the question of whether plain error applies in this situation is largely academic. Because of the way the court analyzes all the plain error elements, a Rule 11(d)(1) violation should always be reversible plain error. Nevertheless, it would have been better if the court had treated this as preserved error, lest its use of plain error create confusion over how to preserve other kinds of error.

Finally, the court suggests a way to head this problem off at the pass:

If a district court wishes to avoid a similar situation in the future—where a defendant pleads guilty in front of a magistrate judge and then later seeks to withdraw the plea before the court accepts it—the district court simply should accept the plea more promptly. In fact, the court can accept the plea before it reviews the plea agreement and imposes a sentence. See United States v. Hyde, 520 U.S. 670, 677-78 (1997)(distinguishing a plea from a plea agreement); Jones, 472 F.3d at 909 (same). But a defendant does not relinquish his right to have a jury determine his guilt or innocence until the court actually accepts the defendant’s guilty plea.

Not sure that's right, either, because Hyde involved former Rule 32(e)'s requirement that a defendant show a "fair and just reason" for withdrawing a guilty plea (now codified at 11(d)(2)(B)). I invite folks to weigh in on that question in the comments.