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Two-Part Analysis for Withdrawal of Guilty Plea Announced
Majority of Three-Judge Ninth Circuit Panel Says Defendant’s Surprise That Talking to Police Causes Inmate Hostility May Justify Request if Objectively Reasonable, Drawing Dissent by Bumatay
By a MetNews Staff Writer
Two judges of the Ninth U.S. Circuit Court of Appeals on Friday set forth what needs to be shown by a criminal defendant in seeking to withdraw a guilty plea before sentencing, a standard described by a dissenter as “new test” which he proclaimed to be too liberal, with the majority insisting it is merely an application of existing law.
Circuit Judge Kenneth K. Lee said in the majority opinion, in which Circuit Judge Kim McLane Wardlaw joined:
“To withdraw a plea, a defendant must show that (1) the ‘new’ reason is being offered in good-faith and that he subjectively did not know this reason for his plea withdrawal at the time of the plea, and (2) it was objectively reasonable to have not known about or anticipated this material new reason, either.”
The issue arose after a defendant—who had been charged with two counts of distribution of methamphetamine—sought to withdraw his plea after learning during his pretrial detention that providing a proffer to police to possibly qualify for a lower-than-guidelines sentence might have negative social consequences in prison.
Friday’s opinion vacates an order by then-District Court Chief Judge (now Senior Judge) Virginia A. Phillips of the Central District of California denying the defendant’s motion to withdraw and remands the case for a determination as to whether the defendant’s professed surprise in learning that there would be repercussions for his cooperation was reasonable.
Circuit Judge Patrick J. Bumatay dissented, objecting to what he viewed as an increasing leniency in the standard for withdrawal, observing that the new test boils down to a rule that “[a]s long as there’s no gamesmanship and withdrawing wasn’t ‘on a lark,’ any new reason suffices.”
Safety-Valve Provision
Appealing the denial was Vladamir Hernandez, who pled guilty on Nov. 9, 2021 to felony methamphetamine distribution charges and agreed to tell the government about his involvement in the offense in order to be eligible for a lenient sentence.
The “safety-valve” treatment is authorized in 18 U.S.C. §3553 which provides that “[u]pon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.”
Hernandez maintains that his attorney assured him that a safety-valve proffer was not the same as cooperating with the government or acting as an informant. Having never served time in a federal prison, Hernandez says he believed his lawyer and did not think he would be treated with hostility by fellow inmates based on his action.
Five months after his plea, but before any proffer was given, Hernandez moved to withdraw, claiming he learned during his pretrial commitment that he would likely be targeted by other inmates.
Phillips said that she “did not think Hernandez [was] doing this on a lark,” but concluded that he had an adequate remedy for his dilemma—he could avoid the consequences by not providing the promised information. She noted that he voluntarily accepted the risk that he would be sentenced to at least the minimum sentence under the guidelines when he pled guilty.
Fair, Just Reason
Federal Rule of Criminal Procedure 11(d)(2) permits a defendant to withdraw a guilty plea before sentencing if “the defendant can show a fair and just reason for requesting the withdrawal.” Lee said that the “fair and just reason” standard has been applied “broadly” to conclude newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.
The jurist noted that “while we have interpreted Rule 11 broadly, not every ‘new reason’ a defendant offers will merit withdrawal.” He commented that “even if a defendant offers in good faith a new reason to withdraw his plea,” a court must consider whether that reason could have at least plausibly motived the defendant to not enter a guilty plea had it been known at the time.
He declared:
“We…hold that a defendant must first offer in good faith a ‘new’ basis for seeking to withdraw his plea, meaning that he subjectively did not know this ‘new’ reason for withdrawal at the time of his plea. This ‘new’ reason thus cannot be a pretextual excuse to renege on a plea deal and must be offered in good faith. He then must show that objectively he could not have known or anticipated this ‘new’ material reason, either. Only then can the district court exercise its discretion to allow a plea withdrawal under Rule 11’s ‘fair and just’ standard.”
He added: “[O]ur holding today does not establish a new test, nor does it make withdrawing a plea deal ‘more lenient,’ as the dissent states. Rather, our decision merely synthesizes strands of our case law into a coherent framework for analyzing requests for plea withdrawals.”
Sincere Belief
Applying the standard to Hernandez’s request, the judge remarked that “Hernandez’s proffered reason for withdrawal appears sincere.”
Looking to the circumstances surrounding the withdrawal petition, he reasoned:
“[T]he timing of his withdrawal request suggests that he is not testing the waters or having second thoughts. Hernandez sought to withdraw just five months after his plea was entered—before his pre-sentencing report had come out—at a time when the only ‘new information’ available to him was that he learned that he could face reprisals for cooperating….Put differently, this is not a case in which a defendant learns that he will face a longer sentence than he expected…and then tries to wriggle his way out of his plea.”
He remarked:
“Equally important, Hernandez’s plea withdrawal request would have likely led to a more severe sentence, undercutting the inference that he is trying to game the system to avoid a harsh punishment.”
Objective Prong
Lee pointed out that “even if a defendant offers a good-faith ‘new’ basis for withdrawing his plea, that reason is not a ‘fair and just’ one if a reasonable person could have known about it or anticipated it at the time of the plea.”
He explained that “[w]hether a material reason for withdrawing a plea is objectively new depends on what the defendant could have reasonably understood or anticipated when he entered the plea.”
In the present case, the judge said:
“The district court here concluded that Hernandez in good faith offered a subjectively new basis for withdrawing his plea. But rather than decide whether that basis was also objectively new, the district court focused on futility and the likely outcome if withdrawal was permitted.”
Commenting that the outcome is irrelevant to the analysis, Lee wrote:
“In Hernandez’s case, a reasonable person might understand that a defendant who provides information to the authorities under a safety-valve provision may face retaliation in prison…. On the other hand, Hernandez suggests that most people would think that safety-valve cooperators are different from other defendants who cooperate with or testify for the government, and that it was reasonable to think they would not be targeted by other inmates.”
He declared that “[o]n remand, the district court should decide whether a reasonable person would have known that people who proffer under the safety valve face potential threats in prison and how that information would have plausibly affected a defendant’s decision-making calculus.”
Bumatay’s Dissent
Bumatay said:
“Vladimir Hernandez rolled the dice. He gambled that, after pleading guilty, he would receive a reduced sentence under the ‘safety valve’ sentencing provision. Yet his gamble did not pay off. He had second thoughts about truthfully disclosing his drug trafficking activities to the government, which is required for safety valve relief….But just because Hernandez rolled the dice and came up empty doesn’t mean he gets new chips to play the game again. Withdrawing a guilty plea is no game. It’s a serious matter….”
He objected to what he saw as an expansion of the standard and the adoption of a new two-part inquiry, writing:
“[U]nfortunately, the majority expands the reach of the “any other [new] reason” category. It adopts a new two-part test for determining when a ‘new reason’ exists. But that test provides little in the way of a limiting principle or grounding in the text of Rule 11(d)…. All we need is any reason that’s not completely irrelevant and that’s subjectively and objectively ‘new.’”
He added:
“I fear the majority makes an already too lenient standard even more lenient. It lowers the bar so much that it risks serious repercussions for the future of plea bargaining throughout our circuit. And it deepens the gulf from the text of Rule 11(d).”
The case is U.S. v. Hernandez, 22-50134.
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