United States Court of Appeals
For the First Circuit
No. 14-1187
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN CARLOS DÁVILA-RUIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
[Hon. Silvia Carreño-Coll, U.S. Magistrate Judge]
Before
Howard, Chief Judge,
Selya and Lynch, Circuit Judges.
Liza L. Rosado-Rodríguez, with whom Eric Alexander Vos,
Federal Public Defender, and Vivianne M. Marrero, Assistant
Federal Public Defender, Supervisor, Appeals Section, were on
brief, for appellant.
María L. Montañez Concepción, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa,
Assistant United States Attorney, Chief, Appellate Division, and
Thomas F. Klumper, Assistant United States Attorney, were on brief,
for appellee.
June 23, 2015
SELYA, Circuit Judge. Federal Rule of Criminal
Procedure 11(d)(1) provides that a defendant may withdraw a guilty
plea "for any reason or no reason" at any time before the court
accepts it. The matter at hand requires us to decide a question
of first impression in this circuit concerning the operation of
this rule. The district court thought that the defendant's
execution of a plea agreement, his consent to have a magistrate
judge conduct the change-of-plea colloquy, his subsequent
participation in such a hearing, the magistrate judge's
recommendation that the tendered plea be accepted, and the
defendant's failure to make a timeous objection to that
recommendation combined to remove the defendant from the
protective carapace of the rule. Concluding, as we do, that the
district court erred, we vacate the judgment below and remand with
directions to grant the defendant's plea-withdrawal motion and to
conduct further proceedings consistent with this opinion.
We briefly rehearse the relevant facts and travel of the case.
In July of 2012, a federal grand jury sitting in the District of
Puerto Rico returned an indictment charging defendant-appellant
Juan Carlos Dávila-Ruiz and two co-defendants with attempted
carjacking, see 18 U.S.C. § 2119, and the use of a firearm during
a crime of violence, see id. § 924(c). All of them pleaded not
guilty and, following some preliminary skirmishing, the government
proposed plea agreements across the board.
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On April 23, 2013 ─ with trial imminent ─ the defendant moved
to change his plea. One of his co-defendants chose the same
course, but the other (Edwin Suárez-Rivera) opted for trial. The
district court referred the defendant's motion to a magistrate
judge with instructions to prepare a report and recommendation.
Before any hearing was held, the defendant entered into a
plea agreement with the government. As part of this bargain, the
defendant agreed to plead guilty to a substitute information
charging him with the firearms offense in exchange for dismissal
of the two-count indictment. The parties jointly agreed to
recommend a 60-month sentence (the mandatory minimum under the
statute of conviction).
On May 24, the magistrate judge convened a change-of-plea
hearing. She began by informing the defendant of his right to
have the hearing conducted by the district court. She then
explained: "[If] by the end I am convinced that you are doing this
intelligently, knowingly and voluntarily, then I [will] issue a
report and recommendation telling the [district judge] that he
should accept your guilty plea. But my recommendations may be
reviewed by the [district judge] . . . ." The defendant
acknowledged his understanding of this procedure and signed a
waiver form (the Waiver) variously entitled "Waiver of Right to
Trial by Jury" and "Consent to Proceed before a United States
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Magistrate Judge in a Felony Case for Pleading Guilty (Rule 11,
Fed.R.Crim.P.)." Pertinently, the Waiver stated:
I HEREBY: Waive (give up) my right to trial
before a United States District Judge and
express my consent to proceed before a
Magistrate-Judge while I plead guilty (Rule 11
proceedings) and the entry of a judgment of
conviction upon the Magistrate-Judge's
recommendation. I understand that sentence
will be imposed by a District Judge.
At the conclusion of the hearing, the magistrate judge found
that the defendant's plea was knowing and voluntary and had a basis
in fact. She then stated that she would recommend that the
district court accept the guilty plea.
On June 3, the magistrate judge issued a written report and
recommendation (the R&R). The R&R contained a recommendation that
the district court accept the plea. It concluded by advising the
parties that they had 14 days within which to file objections and
warned that failure to do so would result in a waiver of the right
to appeal from the magistrate judge's findings and conclusions.
See 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(2). Fourteen
days came and went, and no objections were lodged. Nevertheless,
the district court took no action to adopt the magistrate judge's
recommendation and thereby accept the defendant's plea.
In late August, defense counsel learned that the government
had dropped the charges against Suárez-Rivera. She apprised the
prosecutor that, in light of this development, the defendant might
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want to withdraw his plea. The district court held a hearing on
October 21, at which time defense counsel related that the
defendant would be moving to withdraw his plea.
On November 13, the defendant filed a plea-withdrawal motion.
Citing Rule 11(d)(1), he claimed that because the court had not
yet accepted his guilty plea, he had an absolute right to withdraw
it. The government objected, arguing that the magistrate judge
had authority to accept the defendant's guilty plea; that Rule
11(d)(2)(B) therefore governed; and that the defendant would have
to show a "fair and just reason" in order to withdraw his plea
under that rule.
The district court sided with the government: it noted that
it had reviewed the change-of-plea transcript and that the plea
had been "adequately and thoroughly taken," with the result that
Rule 11(d)(1) was no longer available. Since the defendant had
not proffered a fair and just reason for withdrawing his plea, the
court denied the plea-withdrawal motion and thereafter denied a
motion for reconsideration.
On January 27, 2014, the district court convened the
disposition hearing, adopted the R&R, accepted the guilty plea,
and sentenced the defendant to serve a 60-month term of immurement.
This timely appeal ensued.
The defendant contends that the district court erred in
refusing to allow him to withdraw his guilty plea without showing
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a fair and just reason for doing so. In support, he asserts that
because the district court had not accepted the plea, Rule 11(d)(1)
entitled him to withdraw his plea without any explanation. We
turn directly to this contention.
Rule 11 governs the entry, acceptance, and withdrawal of pleas
in federal criminal cases. The benchmark for determining whether
a plea may be withdrawn varies depending on the timing of the
defendant's motion. When a plea has been tendered but not yet
accepted by the court, a defendant can withdraw it "for any reason
or no reason." Fed. R. Crim. P. 11(d)(1). During the interval
between the court's acceptance of a plea and the imposition of
sentence, a defendant can withdraw his plea only if he establishes
"a fair and just reason" for doing so.1 Id. 11(d)(2)(B).
We normally review a district court's denial of a plea-
withdrawal motion for abuse of discretion. See United States v.
Torres-Rosario, 447 F.3d 61, 65 (1st Cir. 2006); United States v.
Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994). But a material
error of law is always an abuse of discretion. See United States
v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998). A claim that the
district court was without discretion to deny such a motion is a
1 A defendant's ability to withdraw his plea after sentencing
is a different matter, see Fed. R. Crim. P. 11(e); Wilkins v.
United States, 754 F.3d 24, 27-28 (1st Cir. 2014), and is beyond
the scope of this opinion.
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question of law, engendering de novo review.2 See United States v.
Byrum, 567 F.3d 1255, 1258-59 (10th Cir. 2009); United States v.
Jones, 472 F.3d at 905, 908-09 (D.C. Cir. 2007).
Rule 11(d)(1) is clear as a bell: it renders a district court
powerless to deny a plea-withdrawal motion when the motion is made
before the plea has been accepted. See, e.g., United States v.
Arami, 536 F.3d 479, 483 (5th Cir. 2008); Jones, 472 F.3d at 908.
In this case, the defendant asseverates that he filed his plea-
withdrawal motion prior to the time that the district court
accepted his plea and that, therefore, the court had no choice but
to grant the motion without regard to his reasons for seeking such
relief. For all practical purposes, then, the question reduces to
whether the undisputed chain of events requires a finding that the
plea was accepted before the defendant moved to withdraw it.
We recognize that Rule 11 does not specify how a plea is to
be accepted. See United States v. Battle, 499 F.3d 315, 321 (4th
Cir. 2007). Sometimes, the use of equivocal language during a
change-of-plea colloquy may complicate the issue. See Byrum, 567
F.3d at 1259-64; Jones, 472 F.3d at 909; United States v. Head,
340 F.3d 628, 630-31 (8th Cir. 2003). Here, however, there was
2 There may be cases — unlike this one — in which a district
court's ruling on a plea-withdrawal motion will turn on
controverted facts. While such cases may call for a more
deferential standard of review, there are no controverted facts
here.
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nothing equivocal about the magistrate judge's statements and
actions; those statements and actions were crystal clear. During
the hearing, the magistrate judge said that she would recommend
that the district court accept the plea and she proceeded to do
just that. Because the magistrate judge merely recommended
acceptance of the plea rather than actually accepting it, further
action by the district court was needed. See Arami, 536 F.3d at
485; Torres-Rosario, 447 F.3d at 67; United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
That action was slow in coming. As the government concedes,
the district court did not adopt the R&R (and, thus, accept the
plea) until well after the November 13 filing of the plea-
withdrawal motion.3 That was too late to strip the defendant of
the prophylaxis of Rule 11(d)(1).
In an effort to efface this reasoning, the government strives
to convince us that the signing of the Waiver, the magistrate
judge's handling of the change-of-plea hearing, and the
defendant's failure to object within 14 days to the R&R coalesced
to bring about an accepted plea. We are not persuaded.
Even though the district court mentioned at the October 21
3
hearing that it had listened to the audio recording of the change-
of-plea colloquy and "c[ould] reject any motion to withdraw," there
is nothing in the record to indicate that the court accepted the
plea at that time.
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To begin, the government's reliance on the Waiver is
misplaced. Fairly read, the Waiver denotes the defendant's consent
to having the magistrate judge conduct the Rule 11 hearing.
Nothing in the text of the Waiver, however, contradicts the premise
that acceptance of the plea was reserved to the district court.
To the contrary, the Waiver expressly refers to the magistrate
judge's recommendation — and a recommendation to accept a plea is,
by its very nature, not itself an acceptance of the plea. That
the Wavier means exactly what it says is borne out by the
magistrate judge's forthright explanation at the hearing that the
decision about whether to accept the plea remained exclusively
with the district court.
Relatedly, the government argues that, consistent with the
Federal Magistrates Act and the Constitution, a magistrate judge
can accept a defendant's plea in a felony case when the defendant
consents to that practice. The courts of appeals are divided on
this question, compare United States v. Harden, 758 F.3d 886, 888-
91 (7th Cir. 2014) (holding that the practice is unlawful, even
when the defendant consents), with United States v. Benton, 523
F.3d 424, 431-33 (4th Cir. 2008) (contra), and this court has not
taken sides.4 Nor do we have any occasion to do so today: even if
4Our opinion in Torres-Rosario does not concern this issue.
That opinion merely explained that where, as here, a magistrate
judge recommends that a plea be accepted, acceptance does not occur
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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.
The last arrow in the government's quiver is its suggestion
that the defendant's failure to object to the R&R within the
prescribed 14-day period, see Fed. R. Crim. P. 59(b)(2),
pretermitted any later attempt to withdraw his plea under Rule
11(d)(1). This suggestion mixes plums with pomegranates: it
conflates a defendant's time-limited right to object to a
magistrate judge's findings and conclusions with a defendant's
right to withdraw his plea under Rule 11(d)(1). These two
safeguards are separate and distinct. See Reyna-Tapia, 328 F.3d
at 1121. Although the absence of a timely objection to a
magistrate judge's report and recommendation clears the way for a
district court to adopt the recommendation and accept the plea, it
does not mitigate a district court's failure to do so.
Let us be perfectly clear. We recognize that many district
courts face burgeoning criminal dockets and that magistrate judges
can help to shoulder some of the load. But if a district court
chooses to use magistrate judges to conduct plea hearings, the
court is best served by acting on the magistrate judge's
until the district court takes further action. See Torres-Rosario,
447 F.3d at 67.
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recommendation soon after the expiration of the 14-day period for
filing objections. For so long as the court delays in doing so,
the defendant remains free to withdraw his plea. Any other result
would contravene Rule 11(d)(1), the plain language of which grants
a defendant the absolute right to withdraw his plea at any time
before it is accepted.
We reject the idea, espoused both by the district court and
by the government, that allowing defendants to withdraw their pleas
in circumstances like those at hand will throw the current plea-
taking regime into chaos. If there is a problem in this case, it
does not stem from the clear mandate of Rule 11(d)(1) but, rather,
from the district court's delay in acting upon the R&R. Allowing
several months to elapse after the expiration of the 14-day period
for filing objections left the defendant free to exercise the right
afforded to him by Rule 11(d)(1).
We need go no further. For the reasons elucidated above, we
vacate the judgment below and remand with directions to grant the
defendant's plea-withdrawal motion and to conduct further
proceedings consistent with this opinion.
Vacated and remanded.
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