United States Court of Appeals
For the First Circuit
No. 19-1584
UNITED STATES OF AMERICA,
Appellee,
v.
LOUIS GARDNER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Lynch, Lipez, and Kayatta,
Circuit Judges.
William S. Maddox for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney, was on brief, for
appellee.
July 20, 2021
LIPEZ, Circuit Judge. Pursuant to a plea agreement,
Louis Gardner pled guilty to a variety of drug and firearm offenses
in exchange for a 120-month sentence. While in custody prior to
sentencing, he assaulted a fellow inmate, a breach of the plea
agreement. In light of that breach, the government withdrew from
the agreement. When Gardner then moved to withdraw his guilty
plea, the government opposed, insisting that Gardner was still
bound by the plea. The district court denied the motion to
withdraw and sentenced Gardner to 160 months' imprisonment -- 40
months above the agreed-upon sentence. Gardner now appeals the
denial of his motion to withdraw the plea, as well as the length
of his sentence. Because we agree that Gardner should have been
allowed to withdraw his plea, we do not reach the sentencing issue.
I.
Louis Gardner was charged with six related drug and
firearm offenses. He and the government negotiated a plea
agreement. The agreement explained that "[i]n exchange for the
defendant's guilty pleas" on three of the six counts, the
government "agrees" to certain sentencing stipulations and to
dismiss the remaining counts of the indictment.1 It also stated
that the parties "stipulate and agree that 120 months' imprisonment
1 Although the plea agreement (and the district court, at
times) referred to Gardner's "guilty pleas" (i.e., the pleas to
each of the three separate counts), we use "guilty plea" to refer
to all three pleas collectively.
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is an appropriate disposition of this case," and that the parties
intended this sentencing stipulation to be "binding" under Federal
Rule of Criminal Procedure 11(c)(1)(C),2 meaning that "if the Court
will not accept the plea agreement under Fed. R. Crim. P.
11(c)(3)(A),3 the plea agreement is null and void and the defendant
will be allowed the opportunity to withdraw his guilty pleas." In
addition to other recitals, waivers, and stipulations, the
agreement included a breach provision, which specified that if,
"before sentencing," Gardner "violates any term or condition of
this Plea Agreement, engages in any criminal activity, or fails to
appear for sentencing," the government "may consider such conduct
to be a breach of the Plea Agreement and may withdraw therefrom."
The district court duly held a change of plea hearing.
The court went over the agreement and confirmed that Gardner
understood it and was entering into the plea knowingly and
voluntarily. As part of its review, the district court also
explained the significance of the stipulated sentence:
THE COURT: All right. So Mr. Gardner, you
and the government have agreed that the total
sentence that's to be imposed in this . . .
Rule 11(c)(1)(C) allows the parties to "agree that a
2
specific sentence or sentencing range is the appropriate
disposition of the case," and "binds the court [to the recommended
sentence] once [it] accepts the plea agreement."
3Rule 11(c)(3)(A) provides that, as to plea agreements
containing an agreed-upon sentence pursuant to Rule 11(c)(1)(C),
"the court may accept the agreement, reject it, or defer a decision
until the court has reviewed the presentence report."
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case is 120 months in prison. That's a binding
agreement which means if the Court accepts
that agreement and imposes that sentence, do
you understand you cannot withdraw your guilty
plea?
THE DEFENDANT: Yes.
THE COURT: If the court does not accept that
binding agreement and does not impose that
sentence, do you understand that you would
have the opportunity then to withdraw your
guilty plea?
THE DEFENDANT: Yes.
In accordance with the agreement, the district court then accepted
Gardner's guilty plea on the three counts and set a date for
sentencing.
While in custody awaiting sentencing, Gardner assaulted
a fellow inmate. Citing the breach provision that allowed it to
withdraw from the plea agreement if the defendant committed
criminal activity before sentencing, the government moved to
withdraw. After a hearing, the district court found, by a
preponderance of the evidence, that Gardner did indeed commit the
assault, granted the government's motion to withdraw from the plea
agreement, and rescheduled sentencing on the previously-entered
plea.
Sixteen days after the government's motion to withdraw
from the plea agreement was granted, Gardner moved to withdraw the
underlying guilty plea. At the hearing on the motion, his counsel
argued that, given that "the government has withdrawn from the
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agreement," and assuming that "the Court is not going to accept
the 120 month[]" stipulated sentence, Gardner "should be allowed
the opportunity to withdraw his plea." The district court denied
the motion, stating that, as a matter of fairness, Gardner's loss
of the stipulated sentence was "a consequence of his own actions,"
and "the government's withdrawal from the plea agreement because
of Gardner's breach is not a sufficient reason to permit him to
withdraw his guilty pleas." Then, addressing the fact that the
agreement allowed Gardner to withdraw his plea "if the Court will
not accept the plea agreement under Fed. R. Crim. P. 11(c)(3)(A),"
the court reasoned that it had not actually rejected the plea
agreement, a process which entails its own, somewhat elaborate
procedures for rejection under Rule 11(c)(5).4 Instead, the court
explained that it had simply allowed the government to withdraw
(as permitted by the breach provision), meaning that Gardner's
right to withdraw the plea was never triggered.
After denying Gardner's motion to withdraw his plea, the
district court proceeded to sentencing. Now unbound by the
4 Specifically, in order to reject a plea agreement under
Rule 11(c)(5), a court must, "on the record and in open court (or,
for good cause, in camera)": "(A) inform the parties that the court
rejects the plea agreement; (B) advise the defendant personally
that the court is not required to follow the plea agreement and
give the defendant an opportunity to withdraw the plea; and (C)
advise the defendant personally that if the plea is not withdrawn,
the court may dispose of the case less favorably toward the
defendant than the plea agreement contemplated." Fed. R. Crim. P.
11(c)(5).
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agreement's 120-month stipulation, it applied the Sentencing
Guidelines and ultimately imposed a sentence of 160 months. On
appeal, Gardner challenges the denial of his motion to withdraw
his plea.
II.
Guilty pleas and plea agreements are distinct, governed
by different parts of Rule 11. See Fed. R. Crim. P. 11(a), (b)
(guilty pleas); Fed. R. Crim. P. 11(c) (plea agreements). Although
a defendant usually pleads guilty pursuant to a plea agreement,
"[g]uilty pleas can be accepted while plea agreements are deferred,
and the acceptance of the two can be separated in time." United
States v. Hyde, 520 U.S. 670, 674 (1997).
In general, we review a district court's denial of a
pre-sentencing motion to withdraw a guilty plea for abuse of
discretion. United States v. Rodríguez-Morales, 647 F.3d 395, 397
(1st Cir. 2011). When presented with such a motion, a district
court must determine whether there is a "fair and just reason for
requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B); see
also United States v. Dunfee, 821 F.3d 120, 127 (1st Cir. 2016).
In applying that standard, there is not an "exclusive list of
reasons that might allow withdrawal of a plea." United States v.
Aker, 181 F.3d 167, 170 (1st Cir. 1999). However, according to
case law, relevant considerations include: (1) whether the
original plea was knowing, intelligent, and voluntary and in
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compliance with Rule 11, (2) the strength of the reason for
withdrawal, (3) the timing of the motion to withdraw, (4) whether
the defendant has a serious claim of actual innocence, (5) whether
the parties had reached (or breached) a plea agreement, and (6)
whether the government would suffer prejudice if withdrawal is
permitted. See Dunfee, 821 F.3d at 127; United States v. Tilley,
964 F.2d 66, 72 (1st Cir. 1992). The overall standard is
"liberal," United States v. Kobrosky, 711 F.2d 449, 454 (1st Cir.
1983), and "permissive," United States v. Merritt, 755 F.3d 6, 9
(1st Cir. 2014).5
Gardner's argument for allowing his withdrawal turns on
the language of his plea agreement. When interpreting a plea
agreement, we apply "[b]asic contract principles." United States
v. Newbert, 504 F.3d 180, 185 (1st Cir. 2007). The touchstone is
the "defendant's reasonable understanding" of the agreement.
United States v. Conway, 81 F.3d 15, 17 (1st Cir. 1996).6
5 To be sure, we have questioned whether the standard is
quite as liberal as some of our older cases suggest. See United
States v. Torres-Rosario, 447 F.3d 61, 66 (1st Cir. 2006)
("Although older case law endorses a liberal approach to pre-
sentence plea withdrawals, it is questionable how far this view
has survived the pressure of growing dockets and an increasing
appreciation of the grim dynamics of plea bargaining, including
the prevalence of 'buyer's remorse' among those who have pled."
(citations omitted)). But we have not actually abdicated the
"liberal" standard. See, e.g., Merritt, 755 F.3d at 11 (noting
the prevailing liberal standard while cautioning that "liberal
allowance is not to be confused with automatic allowance").
6See also United States v. Gregory, 245 F.3d 160, 166 (2d
Cir. 2001) (considering "the 'reasonable meaning' of the parties'
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III.
Our first task, then, is to determine the parties'
reasonable understanding of the agreement, specifically as to
whether Gardner would be permitted to withdraw his guilty plea if
the government withdrew from the agreement because of Gardner's
breach.
In our view, that question is resolved by the agreement
itself, which states: "[I]f the Court will not accept the plea
agreement under Fed. R. Crim. P. 11(c)(3)(A), the plea agreement
is null and void and the defendant will be allowed the opportunity
to withdraw his guilty pleas." Although this "opportunity to
withdraw" provision refers to the court not accepting the agreement
under Rule 11(c)(3)(A), it does not say that the right to withdraw
is limited to any particular reason for non-acceptance. Rather,
it says that Gardner will have the option to withdraw his plea if
the event contemplated by the language -- the acceptance of the
plea agreement under Rule 11(c)(3)(A) and the imposition of the
stipulated sentence -- did not occur for any reason. Here,
undisputedly, that event never occurred.
overall agreement"); United States v. Cruz-Romero, 848 F.3d 399,
401 (5th Cir. 2017) ("In examining the government's compliance
with its promises in the plea agreement, we ask 'whether the
Government's conduct was consistent with the parties' reasonable
understanding of the agreement'" (quoting United States v. Harper,
643 F.3d 135, 139 (5th Cir. 2011))).
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In denying Gardner's motion to withdraw his plea,
therefore, the district court misread the "opportunity to
withdraw" provision. It first determined that the agreement
allowed Gardner to withdraw the plea only if the court
"'reject[ed]' the plea agreement under Rule 11(c)(3)(A) and
(c)(5)." And then it reasoned that:
In this case . . . the court did not "reject"
the plea agreement under Rule 11(c)(3)(A) and
(c)(5). In granting the government's motion
to withdraw from the agreement, the court
enforced . . . the plea agreement, which
permitted the government to withdraw if
Gardner engaged in criminal activity. . . .
Gardner cannot transform his breach of the
plea agreement, which cost him his right to
receive the agreed-upon sentence, into a
rejection of the agreement by the court.
We see two difficulties with the court's approach.
First, while the district court was undoubtedly "enforcing" the
agreement by allowing the government to withdraw in light of
Gardner's breach, that enforcement is only one half of the
equation. Both parties to the agreement have a claim to its
enforcement. The second question is what impact the government's
withdrawal had on Gardner's rights -- and specifically, whether
Gardner remained bound by his guilty plea or had a right to
withdraw it.
On that question, the district court, in evaluating
whether it "rejected" the agreement, focused on a word that does
not appear in the plea agreement. As we have seen, the
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"opportunity to withdraw" provision is worded differently. It
permits withdrawal of the plea if the district court "will not
accept the plea agreement under Fed. R. Crim. P. 11(c)(3)(A)."
And, as we have noted, the court indisputably did not accept the
agreement. Said differently, the agreement's reference to "not
accept" is a broader term than "reject." "Not accepting"
encompasses every situation in which the court does not actually
impose the stipulated sentence; "rejecting" the agreement under
Rule 11 is just one of those situations.
While not necessarily dispositive, it is telling that
the district court seemed to endorse the correct reading of the
"opportunity to withdraw" provision at the change of plea hearing:
THE COURT: All right. So Mr. Gardner, you
and the government have agreed that the total
sentence that's to be imposed in this . . .
case is 120 months in prison. That's a binding
agreement which means if the Court accepts
that agreement and imposes that sentence, do
you understand you cannot withdraw your guilty
plea?
THE DEFENDANT: Yes.
THE COURT: If the court does not accept that
binding agreement and does not impose that
sentence, do you understand that you would
have the opportunity then to withdraw your
guilty plea?
THE DEFENDANT: Yes.
These statements suggest that, consistent with the agreement,
there were two -- and only two -- mutually exclusive outcomes: if
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the court "accept[ed] the agreement and impose[d] that sentence,"
Gardner would not be able to withdraw his guilty plea, whereas if
it "d[id] not accept that binding agreement and d[id] not impose
that sentence," Gardner would have the opportunity to withdraw his
guilty plea.
The dissent disagrees with our reading of the agreement.
It suggests that the agreement "explicitly requires the district
court to indicate that it will not accept the agreement" in order
to trigger Gardner's withdrawal right. However, nothing in the
operative phrase ("if the Court will not accept the plea agreement
under Fed. R. Crim. P. 11(c)(3)(A)") requires any kind of
affirmative statement. Rather, the language simply establishes a
future condition which, if not satisfied, will trigger a specified
consequence. Therefore, once it was clear that the district court
would not accept the agreement, Gardner had a right to withdraw
his plea. The dissent, in effect, is introducing a further
requirement: that the district court had to affirmatively reject
the agreement. While the agreement could have been written that
way, it was not.7
7 We note that, if the agreement had been written to give
Gardner the right to withdraw only if the district court
affirmatively rejected the agreement, it would simply be reciting
what Rule 11 already guarantees. See Fed. R. Crim. P. 11(c)(5)
(requiring the court, if it "rejects a plea agreement" specifying
a sentence pursuant to Rule 11(c)(1)(C), to "give the defendant an
opportunity to withdraw the plea").
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The dissent also suggests that "[t]he district court's
actions demonstrate that it accepted the plea agreement." That
view of what occurred is unsupportable. "Accepting a plea
agreement" is a formal act under the Rules and triggers serious
consequences and obligations. Rule 11(c)(1)(C) "binds the court
[to the recommended sentence] once [it] accepts the plea
agreement." Obviously, the court never imposed the recommended
sentence of 120 months. It imposed a sentence of 160 months.
Additionally, Rule 11(c)(5) provides that, "[i]f the court accepts
the plea agreement" proposing a recommended sentence, it must
inform the defendant that "the agreed disposition will be included
in the judgment." Here, at the change of plea hearing, the court
accepted Gardner's guilty plea but deferred a decision on the
recommended sentence. It did not inform Gardner that the
recommended sentence would be included in the judgment or state
that he would be sentenced as provided in the agreement. Under no
plausible construction of the rules or the proceedings, then, did
the district court accept the agreement, in fact or constructively.
Additionally, nothing else in the agreement suggests
that the "opportunity to withdraw" provision should not be taken
to mean what it says. The breach provision itself says nothing
about the defendant's right of withdrawal after a breach,
explaining only that "if, before sentencing, [Gardner] violates
any term or condition of this Plea Agreement, engages in any
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criminal activity, or fails to appear for sentencing, the United
States may consider such conduct to be a breach of the Plea
Agreement and may withdraw therefrom." That is, the breach
provision is silent about whether Gardner would be held to his
guilty plea, despite the government's withdrawal, or whether, in
light of the government's withdrawal, he would be permitted to
withdraw his plea.
Similarly, nothing in the general law of plea bargaining
or our case law precludes Gardner from withdrawing his guilty plea
in these circumstances. To the contrary, "it is generally accepted
that 'when a defendant breaches his plea agreement, the Government
has the option to either seek specific performance of the agreement
or treat it as unenforceable' (at least absent language in the
plea agreement specifying fewer or other remedies)." 5 Wayne R.
LaFave et al., Crim. Proc. § 21.2(e) (4th ed. 2020) (quoting United
States v. Cimino, 381 F.3d 124, 128 (2d Cir. 2004)). In this
context, "specific performance" means that the government can
enforce the remaining provisions of the agreement and hold the
defendant to the guilty plea. See United States v. Alexander, 869
F.2d 91, 94-95 (2d Cir. 1989). If the government instead chooses
to treat the entire agreement as unenforceable (sometimes referred
to as "cancellation"), the presumption is that the defendant may
withdraw his plea, unless "the plea agreement itself . . .
describe[s] the government's remedies in such a fashion as to
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foreclose plea withdrawal by the defendant in these
circumstances." 5 Wayne R. LaFave et al., Crim. Proc. § 21.2(e).
Here, as we have explained, the plea agreement did not foreclose
plea withdrawal by the defendant in the event of his own breach.
The government cites our decision in United States v.
Tilley, 964 F.2d 66 (1st Cir. 1992), for the proposition that a
defendant should not be able to withdraw a plea because of his own
breach of a plea agreement. Like Gardner, Tilley breached his
plea agreement by committing a crime (in Tilley's case, by
perjuring himself before a grand jury and at a criminal trial).
Id. at 69. Facing the loss of certain benefits under the
agreement, Tilley then moved to withdraw his plea. Id. The
district court denied the motion, and we affirmed. Id. at 73. We
first determined that the court did not err in finding that Tilley
breached the agreement. Id. at 72. Then, after analyzing the
appropriate factors, we concluded that the court did not abuse its
discretion in finding that there was not a "fair and just reason"
to permit withdrawal. Id. at 72-73.
Some of our language in the opinion suggests that Tilley
was foreclosed from withdrawing his plea simply because he breached
his agreement by committing a crime. See id. at 73 (in arguing
for the opportunity to withdraw his plea, we said, Tilley
"overlooks the fact that he did indeed violate the plea agreement
by engaging in behavior which constitutes a crime"). But as the
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rest of the opinion makes clear, Tilley's holding relies on the
specific language of Tilley's plea agreement, which provided that,
if Tilley violated the agreement, "the Government had the option
to declare the agreement null and void, or to bring the failure to
fully cooperate to the attention of the court." Id. at 71 n.17.
In response to Tilley's breach, the government simply chose the
latter, specifically-provided remedy, which did not trigger any
right to withdraw the plea. See id. at 73 ("In view of a violation
by appellant of the plea agreement, the Government was entitled to
bring all factors related to said violation to the attention of
the court."). Here, there is no analogous remedy specified in the
plea agreement. The plea agreement does not make clear that the
defendant would be bound to the plea if the government opted to
withdraw from the agreement.
In sum, this is not a case where the plea agreement
specifies that "if [the defendant] committed new crimes, he would
be bound to his guilty plea even if the Government exercised its
right to rescind the [plea] agreement." United States v. Gregory,
245 F.3d 160, 166 (2d Cir. 2001). To the contrary, the agreement
indicated (and the district court confirmed at the change of plea
hearing) that Gardner would be able to withdraw his plea if the
court did not accept the agreement -- and the court did not accept
the agreement.
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With that understanding of the agreement in mind, we
proceed to consider whether there is a fair and just reason to
permit withdrawal of Gardner's plea.
IV.
As we have noted, the substantive standard for
evaluating a motion to withdraw a guilty plea in the trial court
(and the standard that informs our review of the trial court's
exercise of discretion in denying a motion to withdraw a guilty
plea) is whether there was a "fair and just reason" for withdrawal.
The relevant considerations include: (1) whether the plea was
knowing and voluntary and in compliance with Rule 11, (2) the
strength of the reason for withdrawal, (3) the timing of the motion
to withdraw, (4) whether the defendant has a serious claim of
actual innocence, (5) whether the parties had reached (or breached)
a plea agreement, and (6) whether the government would suffer
prejudice if withdrawal is allowed. See Tilley, 964 F.2d at 72.
Three of the considerations favor withdrawal. First,
the reason for withdrawal is highly compelling: the agreement
explicitly guaranteed Gardner the opportunity to withdraw his plea
in these circumstances. This reason is far from a mere "second
thought[] about some fact or point of law, or about the wisdom of
his earlier decision." United States v. Parrilla-Tirado, 22 F.3d
368, 371 (1st Cir. 1994) (citations omitted). Indeed, it goes to
the heart of the bargain that Gardner struck with the government.
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Second, Gardner moved to withdraw his guilty plea
promptly. He did so only sixteen days after the court granted the
government's motion to withdraw from the plea agreement, when
Gardner first learned that the court would not be accepting the
agreement. Although we typically measure any delay from the entry
of the guilty plea, see Ramos, 810 F.2d at 313, we have recognized
that a different approach may be warranted in certain
circumstances. For example, we observed that, when a motion to
withdraw is motivated by post-plea developments in a separate case,
it may not be correct to "rel[y] on the . . . passage of time
between the plea and the motion to withdraw it as an indication
that [the defendant] was simply employing sharp tactics," at least
when the motion to withdraw "was filed so soon after the events in
the [other] case." United States v. Isom, 580 F.3d 43, 53 n.15
(1st Cir. 2009). In the present circumstances, we consider the
sixteen-day delay to be the appropriate measure for evaluating
promptness, as Gardner had no reason to move to withdraw earlier.
And even though we have held a delay as brief as thirteen days
against a defendant, see Ramos, 810 F.2d at 313, the delay here is
certainly on the shorter side, and we have countenanced much longer
delays when other considerations favor withdrawal, see United
States v. Daniels, 821 F.2d 76, 79 (1st Cir. 1987) (allowing
withdrawal after ten-week delay).
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Third, there does not appear to be any prejudice to the
government, beyond the burdens that inevitably accompany any
withdrawal -- namely, those of processing the withdrawal and
negotiating a second plea or proceeding to trial. Indeed, there
is no suggestion by the government of any kind of prejudice, such
as any difficulty in tracking down witnesses or otherwise preparing
for a potential trial. See Kobrosky, 711 F.2d at 455 (explaining
that "[t]he most common form of prejudice is the difficulty that
the government would encounter in reassembling its witnesses").
The dissent, on the government's behalf, speculates about possible
kinds of prejudice, but it is not our role to make an argument
that the government never makes.
To be sure, on the negative side of the balance, there
are also three factors. Gardner has not advanced any plausible
theory of innocence.8 But this deficiency is not fatal; it just
"counsels against" allowing withdrawal. United States v. Mercedes
Mercedes, 428 F.3d 355, 360 (1st Cir. 2005). Additionally, he
unquestionably breached the agreement by committing an assault, a
significant breach to be sure. And, finally, there is no
8 According to the plea agreement, Gardner was arrested while
driving home, armed with a gun, from a drug purchase. Also in the
vehicle were a confidential informant and an eventual co-
defendant. Gardner had previously sold drugs to the informant on
two occasions. Gardner argues that if his guilty plea were
withdrawn, he would have the opportunity to move to suppress
evidence and raise an entrapment defense.
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indication that the guilty plea was not "knowing, intelligent, and
voluntary" at the time it was made. United States v. Adams, 971
F.3d 22, 38 (1st Cir. 2020). The district court scrupulously
followed the technical requirements of Rule 11, and Gardner
voluntarily pled guilty in accordance with the agreement as written
and as explained by the district court.
Despite these countervailing considerations, we conclude
that the strength of Gardner's reason for withdrawal so far
outweighs the offsetting factors that the inquiry tilts in his
favor. The government failed to recognize that the plea agreement,
by its terms, gave Gardner the right to withdraw his plea under
the circumstances of this case. That failure, sanctioned by the
court with its denial of Gardner's motion to withdraw his plea,
was tantamount to a breach of the plea agreement by the government.
Given the importance of contract principles to the enforcement of
plea agreements, see Newbert, 504 F.3d at 185, and the other
factors cited in Gardner's favor, there was a fair and just reason
for the withdrawal of Gardner's plea, and the district court abused
its discretion in concluding otherwise. 9
9 The dissent also maintains that any prejudice to the
government should be considered only after Gardner has met his
burden on the initial five factors (and thereby established some
good reason for withdrawal). Some of our cases do suggest such a
bifurcated analysis. See, e.g., United States v. Pellerito, 878
F.2d 1535, 1537 (1st Cir. 1989) ("If a defendant advances a
plausible reason, the court should also weigh the prejudice, if
any, to the government."). But other cases of ours simply list
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V.
We close with two additional points. The government and
the dissent argue that allowing a plea withdrawal in these
circumstances would, effectively, reward Gardner for his own
breach. Even worse, the government and dissent suggest, such a
decision would encourage future defendants to deliberately breach
their plea agreements in the hope of getting out of their pleas.10
We are unpersuaded. In the face of a defendant's
strategic breach, the government will not be obligated to cancel
the agreement and concede to the withdrawal of the plea. Rather,
as the non-breaching party, the government will have the option of
how to respond. The government might elect specific performance:
that is, keep the rest of agreement in place, in which case the
defendant would be stuck with the same plea, plus, potentially,
additional exposure for a new crime. See Cimino, 381 F.3d at 128
n.3. Alternatively, the government might choose to void the
agreement, concede to withdrawal of the original plea, and
prejudice as one factor among the others. See, e.g., United States
v. Dunfee, 821 F.3d 120, 127 (1st Cir. 2016); United States v.
Isom, 580 F.3d 43, 52 (1st Cir. 2009); United States v. Kobrosky,
711 F.2d 449, 455 (1st Cir. 1983). Here, even if we adopted the
dissent's preferred approach, we would still find that Gardner had
established a plausible reason for withdrawal based on the initial
five factors -- in particular, the strength of the reason for
withdrawal.
To be clear, there is no argument or indication here that
10
Gardner committed the assault in order to facilitate his plea
withdrawal.
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"demand[] that [the defendant] either plead guilty a second time
or go to trial." Id. In the latter case, the price is high: a
defendant would lose the benefits of the existing plea agreement
(including any agreed-upon sentence and benefit for acceptance of
responsibility) and, if he breached by committing a crime, face
the possibility of a new prosecution.
Additionally, of course, the government can avoid a
repetition of the scenario here by being clearer in future plea
agreements about the consequences of a defendant's breach (i.e.,
by explicitly specifying in the agreement that the defendant will
still be held to the guilty plea even if the government exercises
its right to withdraw). See United States v. Rivera, 954 F.2d
122, 125 (2d Cir. 1992) (instructing that "[t]he government should
make it absolutely clear in a plea agreement that a breach by the
defendant releases the government from its obligation to recommend
leniency but does not release the defendant from the plea of
guilty"). The prosecution, defendants, and the courts would all
benefit from this additional clarity.
VI.
For the reasons set forth herein, Gardner must be
permitted to withdraw his guilty plea. We vacate the judgment.
So ordered.
- Dissenting Opinion Follows -
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LYNCH, Circuit Judge, dissenting. With respect, I
believe the majority got this wrong and departed from controlling
law at every key point in its analysis. After entering into a
plea agreement, Gardner assaulted a codefendant and possible
witness against him. This assault triggered a provision in his
plea agreement giving the government, but not Gardner, the right
to "consider [Gardner's] conduct to be a breach of the Plea
Agreement and . . . withdraw" from it. The government exercised
this right. The majority opinion allows Gardner to also withdraw
from the plea agreement due to his own breach. In doing so, it
concludes that the district court never accepted the plea agreement
under Rule 11, directly contradicting the fact that the court
enforced the plea agreement. Further, the majority erroneously
reads into the plea agreement terms not bargained for by the
defendant, disadvantaging the government. Beyond that, the
majority erroneously holds that the district court abused its
discretion when it did not allow Gardner to withdraw his plea and
posits that no harm will come from its decision. I disagree on
all of these key points.
The majority begins its analysis by saying that the plea
agreement's "opportunity to withdraw" provision gives Gardner the
right to withdraw his plea. That provision reads: "[I]f the Court
will not accept the plea agreement under Fed. R. Crim. P.
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11(c)(3)(A), the plea agreement is null and void and [Gardner]
will be allowed the opportunity to withdraw his guilty pleas."
When presented with a plea agreement like Gardner's,
Rule 11 says that a court "may accept the agreement, reject it, or
defer a decision until the court has reviewed the presentence
report [('PSR')]." Fed. R. Crim. P. 11(c)(3)(A). The text is
clear that, even if the court chooses to defer its decision pending
review of the PSR, the court has to choose between two options:
accepting or rejecting the plea agreement. See United States v.
Hyde, 520 U.S. 670, 675 (1997) (discussing the district court's
ability to "defer its decision about whether to accept [a] [Rule
11(c)(1)(C)] agreement (emphasis added)); United States v. Fokker
Servs. B.V., 818 F.3d 733, 745 (D.C. Cir. 2016) (describing "a
district court's authority to 'accept' or 'reject' a proposed plea
agreement under Rule 11"); see also Fed R. Crim. Proc. 11(c)
(outlining the procedures for "[a]ccepting a [p]lea [a]greement"
in Rule 11(c)(4) and "[r]ejecting a [p]lea [a]greement" in Rule
11(c)(5)).
The majority concedes that the district court never
rejected the plea agreement.11 It should have then concluded that
11 As the majority recognizes, a district court must follow
the procedures in Rule 11(c)(5) to reject a plea agreement, which
it did not do here. If the district court had rejected the
agreement, there would be no need to interpret it. Gardner would
have been permitted to withdraw his plea pursuant to Rule
11(c)(5)(B).
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the court either deferred acceptance of the agreement or accepted
it outright. In either case, that would mean that the "opportunity
to withdraw" provision does not apply to Gardner. Instead, the
majority erroneously holds that the provision applies (and Gardner
can withdraw his plea) because, even though the district court did
not reject the agreement, the majority says that the district court
did not accept the agreement.12
This holding is inconsistent with the text of the plea
agreement. The "opportunity to withdraw" provision says that if
the court "will not accept" the agreement, then the agreement
becomes null and void. (Emphasis added). The majority's reading
ignores the word "will." Non-acceptance alone would not be
enough.13 The agreement explicitly requires the district court to
indicate that it will not accept the agreement, something it did
not do.
12 The majority erroneously reads the change of plea
hearing transcript to say that the district court had "two -- and
only two -- mutually exclusive" options. In the majority's view,
the district court could either (1) accept the plea agreement and
impose the sentence in the agreement or (2) not accept the
agreement and not impose that sentence. This reading ties
acceptance of the agreement to sentencing, making it impossible
for the court to accept the plea agreement until a defendant is
sentenced. That is flatly inconsistent with Rule 11.
13 If non-acceptance alone were enough, then the plea
agreement would have become null and void when the district court,
consistent with Rule 11, chose to defer acceptance of the agreement
at Gardner's change of plea hearing. Fed. R. Crim. P. 11(c)(3)(A).
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Indeed, it did the opposite. The district court's
actions demonstrate that it accepted the plea agreement. The
district court said it relied on the "facts . . . set forth in the
offense conduct paragraph of the plea agreement" when it accepted
Gardner's guilty plea during his change of plea hearing and later
said it was enforcing, not rejecting, the agreement when it allowed
the government to withdraw from the agreement due to Gardner's
breach. See United States v. Soloff, 993 F.3d 240, 244 (4th Cir.
2021) ("Where the record furnishes sufficient evidence to conclude
that a district court constructively accepted the plea agreement,
the court's failure to explicitly accept the agreement will not
undo the parties' bargain."); United States v. Leyva-Matos, 618
F.3d 1213, 1216 n.1 (10th Cir. 2010) (concluding that "the district
court . . . constructively accepted the plea agreement by working
within its terms and accepting certain stipulations while
rejecting others"); United States v. Brown, 571 F.3d 690, 693 (7th
Cir. 2009) (finding that a district court accepted a plea agreement
when "every aspect of the court's disposition . . . was consistent
with an acceptance of the plea agreement"); United States v.
Skidmore, 998 F.2d 372, 375 (6th Cir. 1993) ("[T]he court's failure
to elect clearly one of the options specified in [Rule 11(c)'s
predecessor] amounted to an acceptance of the plea agreement.").
The majority uses the "opportunity to withdraw" provision (which,
if it had actually been triggered, would have voided the agreement
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entirely) to imply a new and unbargained-for term into the
agreement.14 Doing so upsets the bargain the parties struck. I
would conclude that because the district court never said it would
not accept the agreement, did not treat the agreement as null and
void, and in fact enforced the plea agreement's breach provision,
Gardner has no opportunity to withdraw.
Even if Gardner did have an opportunity to withdraw his
guilty plea under the plea agreement, Gardner cannot withdraw this
plea unless he can "show a fair and just reason for requesting the
withdrawal." Fed. R. Crim. Proc. 11(d)(2)(B). We review for abuse
of discretion the district court's determination that Gardner has
not shown a fair and just reason. See United States v. Merritt,
755 F.3d 6, 9 (1st Cir. 2014). There was no abuse of discretion
here.
To determine if a fair and just reason for withdrawal
exists, district courts consider five factors: "(1) the timing of
defendant's change of heart; (2) the force and plausibility of the
14 At times, the majority implies that the government is
choosing to treat the agreement as either unenforceable or null
and void. This implication misunderstands the government's
position. The government wants to treat the agreement as
enforceable, enforce the provision allowing it to withdraw from
the agreement, and hold Gardner to his guilty plea pursuant to the
agreement. The majority's discussion of the "general law of plea
bargaining" governing what happens when the defendant breaches a
plea agreement is not relevant here because the plea agreement
explicitly says what happens: if Gardner breaches, the government
(but not Gardner) has the right to withdraw from the plea
agreement.
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reason; (3) whether the defendant has asserted his legal innocence;
(4) whether the parties had reached (or breached) a plea agreement;
and (5) most importantly, whether the defendant's guilty plea can
still be regarded as voluntary, intelligent, and otherwise in
conformity with Rule 11 . . . in light of the proffered reason and
the disclosed circumstances." United States v. Tilley, 964 F.2d
66, 72 (1st Cir. 1992). If, and only if, a fair and just reason
exists, then the district court considers whether the government
will be prejudiced by the withdrawal of the plea. See United
States v. Adams, 971 F.3d 22, 38 (1st Cir. 2020) ("If the totality
of [the other five factors] militates in favor of allowing the
plea to be withdrawn, the court should then consider whether, and
to what extent, withdrawal would prejudice the government.");
United States v. Flete-Garcia, 925 F.3d 17, 24 (1st Cir. 2019);
United States v. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir. 1997);
United States v. Muriel, 111 F.3d 975, 978 (1st Cir. 1997); United
States v. Desmarais, 967 F.2d 17, 19 (1st Cir. 1992); United States
v. Ramos, 810 F.2d 308, 313 (1st Cir. 1987). Here, the district
court correctly concluded that no fair and just reason for
withdrawal exists. All of the factors cut against Gardner.
On the first factor, Gardner pleaded guilty in October
2018 and moved to withdraw his plea almost four months later, in
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February 2019.15 We have held that waiting only thirteen or
fourteen days from the date of the original plea cuts against the
defendant. See Ramos, 810 F.2d at 313 (1st Cir. 1987); Nunez
Cordero v. United States, 533 F.2d 723, 726 (1st Cir. 1976). That
is because a quick withdrawal might indicate that the original
plea was "made in haste," Nunez Cordero, 533 F.2d at 726, and that
the request for withdrawal is not being made "to gain personal
advantage," Ramos, 533 F.2d at 313; see also United States v.
Fernández-Santos, 856 F.3d 10, 18 (1st Cir. 2017) ("The timing of
a motion to withdraw a guilty plea is important . . . because it
is 'highly probative of motive.'") (quoting United States v. Doyle,
981 F.2d 591, 595 (1st Cir. 1992)); United States v. Sanchez-
Barreto, 93 F.3d 17, 24 (1st Cir. 1996) ("[Defendants] belated
plea-withdrawal motions substantially weakened [their] claims that
their guilty pleas resulted from confusion or coercion."). The
four-month delay here shows that Gardner's request to withdraw was
15 The majority measures the timing of the plea withdrawal
as "sixteen days after the court granted the government's motion
to withdraw from the plea agreement." The majority ignores the
fact that the reason we consider timing at all is because it
informs whether the defendant's original plea was knowing and
voluntary and whether the defendant is trying to strategically
withdraw the plea. Even in United States v. Isom, 580 F.3d 43, 53
n.15 (1st Cir. 2009), on which the majority relies, the Court noted
that the delay in filing a withdrawal motion after the original
plea was relevant and cut against the defendant. See id.
(explaining that the "delay works to [the defendant's] detriment"
when "his claim of innocence did not depend on the events in the
companion case, but could have been raised earlier").
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to gain personal advantage, not because he made his original plea
too hastily.
As to the second factor, Gardner wants to withdraw his
guilty plea because he chose to assault his codefendant. The
majority's holding "would allow the defendant to withdraw his
guilty plea simply on a lark" after he "has sworn in open court
that he actually committed the crimes, after he has stated that he
is pleading guilty because he is guilty, after the court has found
a factual basis for the plea, and after the court has explicitly
announced that it accepts the plea." Hyde, 520 U.S. at 676. It
"debases the judicial proceeding at which a defendant pleads and
the court accepts his plea" by "degrad[ing] the otherwise serious
act of pleading guilty into something akin to a move in a game of
chess." Id. at 676-77. Allowing defendants to benefit by
breaching their plea agreements makes it harder for the government
to enforce plea agreements. The majority opinion forces the
government to either excuse breaches or void plea agreements and
take on the costs and risks associated with allowing defendants to
withdraw their guilty pleas. If defendants can escape their plea
agreements through intentional breaches, they may choose to gamble
on future acquittals by breaching. Encouraging breaches in this
way will cause defendants to treat plea agreements as disposable
and to take their terms less seriously. The "force and
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plausibility" of Gardner's reason therefore does not support
withdrawal. Tilley, 964 F.2d at 72.
The majority agrees that the remaining three factors cut
against Gardner. Gardner has made no claim of innocence, "an
'important factor' in determining whether there is fair and just
reason to allow him to withdraw his plea." United States v.
Daniels, 821 F.2d 76, 79 (1st Cir. 1987) (quoting United States v.
Kobrosky, 711 F.2d 449, 455 (1st Cir. 1983)). He admits that he
is responsible for breaching the agreement by assaulting his
codefendant. See Tilley, 964 F.2d at 73. And his plea was knowing
and voluntary, which is the most important factor in the analysis.
See United States v. Muriel, 111 F.3d 975, 978 (1st Cir. 1997).
By the majority's own count, three factors, including the most
important one, do not support withdrawal. Only two support it.16
I do not see how the majority can conclude that the district court
committed a "demonstrable abuse of discretion" here in holding
that no fair and just reason existed for Gardner to withdraw his
plea. See Marrero-Rivera, 124 F.3d at 348 ("[W]e accord
considerable deference to the firsthand assessment ultimately made
16 The majority says there is no prejudice to the government
and that this fact helps Gardner. Even if this were true,
prejudice is only relevant if the totality of the other factors
supports withdrawal. See United States v. Adams, 971 F.3d 22, 38
(1st Cir. 2020).
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by the district court, which must be affirmed absent a demonstrable
abuse of discretion.").
Finally, even if a fair and just reason for withdrawal
did exist, I strongly disagree that the government's mere assertion
of prejudice is insufficient. The majority's decision will
obviously cause harm in general and clearly, quite specifically on
the facts of this case. The majority's result is not a simple
matter of the government reinstating the original charges. The
events leading to Gardner's prosecution occurred in April 2017,
and it is self-evident that the government will be prejudiced by
having to prosecute Gardner more than four years after the fact.
The government will likely have difficulty securing
witnesses.17 After so much time has passed, it is likely that some
witnesses could not reliably testify against Gardner. See United
States v. Allard, 926 F.2d 1237, 1243 (1st Cir. 1991) (holding
that the fact that a "witness against [the defendant] is no longer
available to testify" "clearly . . . constitutes the kind of
prejudice that may be considered under . . . the 'fair and just
reason' standard"); Kobrosky, 711 F.2d at 455 ("The most common
17 Gardner pleaded guilty while the government was
negotiating plea agreements with his codefendants and the
government did not require any of them to testify against Gardner
as part of their plea deals. Gardner also assaulted one of his
codefendants, who was in a wheelchair at the time, for being a
"rat" and "ratt[ing] on his case," which could discourage his other
codefendants from testifying against him.
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form of prejudice is the difficulty that the government would
encounter in reassembling its witnesses; and the longer the delay
in moving for a plea withdrawal, the greater this prejudice is
likely to be."). Further, a confidential informant was important
to the government's case. There is no evidence that this informant
is still alive or able to testify against Gardner.
Finally, much of the delay prejudicing the government
here is attributable to Gardner, who deliberately prolonged this
appeal (perhaps for tactical reasons) by seeking briefing
extensions for almost eight months. See Allard, 926 F.2d at 1243
(explaining that "a delay that prejudices the government's case is
a factor weighing against withdrawal" when "the defendant can be
blamed for the delay"). Gardner's brief was supposed to be filed
in December 2019, before the COVID-19 pandemic. His counsel
repeatedly requested extensions, many of which were totally
unrelated to the pandemic. In all, he received ten extensions and
had to be ordered to file a brief by August 14, 2020. Such delay
tactics should not be rewarded.
I respectfully dissent.
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