United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2006 Decided January 5, 2007
No. 05-3166
UNITED STATES OF AMERICA,
APPELLEE
v.
DORIAN R. JONES,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00040-01)
William Francis Xavier Becker, appointed by the court,
argued the cause and filed the brief for appellant.
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 the 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.
2
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 Federal Rule of
Criminal Procedure 11(d)(2) only for a “fair and just reason,”
which he failed to offer. Appellant argues that the district
court never accepted his plea, leaving him entitled under Rule
11(d)(1) to withdraw “for any reason or no reason.”
Concluding that the district court did accept appellant’s guilty
plea, we affirm.
I.
In early 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
charge—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 Federal
Rule of Criminal Procedure 11(c)(1)(C), pursuant to which
the parties entered the plea agreement, this range would
become binding if the district court ultimately accepted the
agreement.
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 FED. R. CRIM. P. 11(b). The court then explained to Jones
that “[i]f you plead guilty today and I ultimately accept your
3
plea a presentence report will be prepared and I will then
consider whether or not to accept the plea agreement.” Tr. of
June 2, 2005 Hr’g at 31.
Hearing this explanation of the plea process, Jones’s
attorney asked the court 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, Jones’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.
To ensure that “we’re all comfortable with it,” the court
described the plea process for a second time. Id. at 35.
“[T]he way it works,” the court explained, “is if you plead
guilty today and I accept the plea then the presentence report
is prepared, and I will then consider whether or not to accept
the plea agreement that goes along with the plea.” Id. at 36.
If it does not accept the plea agreement, the court continued,
the defendant “ha[s] the right and will be given the
opportunity to withdraw [his] plea and change [his] plea to
not guilty.” Id. at 37.
Having twice heard the court’s explanation of the plea
process, Jones pleaded guilty. The court then “conditionally
4
accepted [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 Federal Rule of Criminal Procedure 11(d)(1), a
defendant may withdraw a guilty plea before the court accepts
it “for any reason or no reason.” Tr. of Aug. 15, 2005 Hr’g at
31. But once the plea is accepted, the court continued, it may
be withdrawn only if the defendant demonstrates a “fair and
just reason for withdrawal.” Id. at 32. Unsure whether it had
formally accepted the plea at the June hearing, the court
ordered the transcript produced.
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 (1997), a district court may accept 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 because “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
5
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.
Federal Rule of Criminal Procedure 11, which sets forth
procedures for pleas and plea agreements, describes three
instances in which a defendant may withdraw from a
previously tendered guilty plea. First, Rule 11(d)(1) provides
that “before the court accepts the plea,” the defendant may
withdraw “for any reason or no reason” at all. Second, if the
court has already accepted the plea, Rule 11(d)(2)(B) permits
the defendant to withdraw if he “show[s] a fair and just reason
for requesting the withdrawal.” Third, under Rule
11(d)(2)(A), the court must give the defendant an opportunity
to withdraw his plea when the court rejects a plea agreement
made pursuant to Rule 11(c)(1)(A) (which allows the
agreement to provide that the government will not bring new
charges) or—more important for present purposes—Rule
11(c)(1)(C) (which, as noted, permits the prosecution and
defense to agree on a particular sentence or sentencing range).
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. 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 FED. R. CRIM. P. 11 advisory committee’s note
6
(2002 amendments), the decision establishes that when a
district court accepts a guilty plea but defers decision on the
plea agreement, the defendant may withdraw only for “a fair
and just reason,” except that if the court rejects the plea
agreement (and the agreement was made pursuant to Rule
11(c)(1)(A) or 11(c)(1)(C)), the defendant may again
withdraw as of right.
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 Rule 11(d)(1). In support of
this claim, Jones cites several portions of the transcript where
the district court referred to the acceptance as conditional.
For example, at one point the district court said that “[w]hat I
do is conditionally accept the guilty plea subject to review of
the plea agreement and the presentence report that is
prepared.” Tr. of June 2, 2005 Hr’g at 33. But this does not
help Jones. The acceptance was “conditional” only in that
under Rule 11(d)(2)(A) the court had to give Jones an
opportunity to withdraw the plea if it ultimately rejected the
plea agreement. As the government correctly points out,
Hyde ensures that such conditions subsequent do not nullify
otherwise valid acceptances. 520 U.S. at 679-80.
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
7
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 Rule 11(d)(1), however, the district court has no
discretion to deny a pre-acceptance withdrawal of a guilty
plea. The rule states that the defendant may withdraw “for
any reason or no reason.” See United States v. Head, 340
F.3d 628, 629 (8th Cir. 2003) (“[W]e find that the district
court had no discretion, under Rule 11(d), to deny Head’s
motion to withdraw his guilty plea.”). The abuse of discretion
standard, moreover, makes little sense given that we are
reviewing the district court’s interpretation of its own words.
Under these circumstances, our review is de novo. The only
facts relevant to our decision, i.e., the words spoken at the
plea hearing, appear in the transcript, leaving for us the
evaluation of their legal consequences.
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
8
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 plea 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 review 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 defendant 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.” FED. R.
CRIM. P. 11(d)(2)(B). Although Jones told the district court
he had a qualifying reason for withdrawing his plea, a reason
the district court rejected, he makes no such argument on
appeal. We thus affirm the district court’s denial of the
motion to withdraw.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
The majority is correct that “[u]ntil 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.” Maj. op. 6-
7. 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 have 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 Rule 11(d)(1) (rather than for abuse of
discretion as for a withdrawal determination under Rule
11(d)(2)), I disagree with the majority’s suggestion that our
review of the judge’s factual findings is somehow less
deferential because we are “reviewing the district court’s
interpretation of its own words” as memorialized in a verbatim
transcript. See maj. op. 7. We routinely review transcripts of
judicial hearings and, in this case, the trial judge’s finding was
based on his interpretation of the entire transcript of the Rule 11
colloquy, including not only his own words but, significantly,
also those of defense counsel who, as the majority notes, “twice
asked the court to accept the plea agreement contemporaneously
with the plea itself.” Id. 8.