U.S. v. Austin, Seventh Circuit Court of Appeals, Filed October 29, 2018: When Can You Withdraw a Guilty Plea in Federal Court?
When can you withdraw a guilty plea in federal court?
On day five of his trial, Keith Austin pled guilty to bank fraud, aggravated identity theft, and obstruction of justice.
On appeal, the Seventh Circuit denied his request to withdraw his guilty plea but remanded the case for a new sentencing hearing where the district court may reconsider several issues including:
- Austin’s sentencing guidelines range;
- The court’s loss calculation;
- The restitution amount that was more than $9 million; and
- The forfeiture of over $4 million in assets.
First, why did the Court deny Austin’s attempt to withdraw his guilty plea? Can you ever withdraw a guilty plea in federal court?
When Can You Withdraw a Guilty Plea in Federal Court?
It is rare for the court to allow a defendant to withdraw their guilty plea, but it does happen.
A defendant may withdraw their guilty plea if it was not entered into voluntarily. For example, if there was a mistake made or incorrect information provided to the defendant by the court or the defense attorney, and, but for that mistake, the defendant would not have pled guilty, the court may allow a defendant to withdraw their guilty plea.
To preserve the issue for appeal, however, defense counsel needs to make the request to withdraw the plea at or before sentencing.
Because Austin did not move to withdraw his guilty plea as involuntary or object to the sufficiency of the Rule 11 plea colloquy at sentencing, the Seventh Circuit reviewed his guilty plea for plain error.
What does plain error mean?
When there is no objection in the court below and the record is not preserved, in some cases, the appellate court will review for plain error.
To establish plain error on appeal, you must show that:
- The Court made a mistake of law;
- The mistake was plain or obvious;
- The Court’s mistake affected your “substantial rights;” and
- It “seriously impugn[ed] the fairness, integrity, or public reputation of [the] judicial proceedings.”
What is a Rule 11 Plea Colloquy?
“As a practical matter, it is incredibly difficult for a defendant to prove that a district court plainly erred when accepting a guilty plea.” United States v. Villarreal‐Tamayo, 467 F.3d 630, 632 (7th Cir. 2006).
This is because, during a guilty plea, the court must put the Defendant under oath and question them about whether they understand their rights, what rights they are waiving, what they are pleading guilty to, and what the potential consequences will be.
Rule 11 of the Federal Rules of Criminal Procedure requires the court to 1) inform the defendant and 2) determine whether the defendant understands:
- That they can be prosecuted for perjury if they provide false information under oath;
- Their right to plead not guilty, including their right to a jury trial;
- Their right to counsel;
- Their right to subpoena witnesses and cross-examine the government’s witnesses, their right to testify, and their right to not testify;
- That the defendant waives those rights if they plead guilty;
- The maximum penalty they face, including prison, fines, supervised release, and any mandatory minimum sentences;
- Any forfeiture that the government is seeking;
- Any restitution that will be required;
- Any special assessments;
- The court’s obligation to calculate and consider the sentencing range under the sentencing guidelines;
- Any waiver of appeal or collateral attack on the conviction; and
- Any immigration consequences of the guilty plea.
The Court’s failure to go over any of these items with a defendant may be evidence that the defendant’s plea was not voluntary – if a defendant does not know about a consequence of their guilty plea at the time they enter the plea, it is not a knowing and voluntary guilty plea…
In Austin’s case, however, under the “plain error” analysis (Austin did not object at the time of his plea or sentencing), the Court found that his plea was voluntary.
The Seventh Circuit held that, although the district court violated Rule 11 by not discussing Austin’s forfeiture during the plea colloquy, Austin did not show “that his guilty plea was involuntary and that he would not have entered it on the basis of the record as a whole.”
Sentencing Issues Lead to Reversal
Although Austin cannot withdraw his guilty plea, the Seventh Circuit still reversed his sentence and sent the case back to the district court for a new sentencing hearing to determine the correct sentencing guidelines range, loss amount, restitution, and forfeiture.
Restitution is a part of any guilty plea where alleged victims suffered losses as a result of the crime.
In Austin’s case, the government claimed Austin was responsible for over $9 million in restitution. After sentencing, the government admitted that approximately $3 million of that amount was improper. Austin claims that the proper restitution amount is significantly less than that – an issue that they can now resolve in the district court at the new sentencing hearing.
At Austin’s plea hearing, he was not informed that the government was seeking a forfeiture of approximately $4 million in assets – although the government is not barred from seeking the forfeiture, Austin now has an opportunity to contest the forfeiture amount when the case is remanded to the district court.
The total amount of loss may be the largest factor that drives a person’s sentencing guidelines range.
Although Austin did not object at his plea or sentencing hearing to the loss amount of over $9 million that was assigned to him, he will have the opportunity to prove that the proper loss amount is lower at (or before) his new sentencing hearing.
Acceptance of Responsibility
Austin also asked the Court for a 2-point reduction for acceptance of responsibility.
Although the reduction for acceptance of responsibility is almost “automatic” in most guilty pleas – admit the conduct, show remorse, and then plead guilty – it was denied to Austin because he did not plead guilty until day five of his trial:
However, because Austin “put the government through its task,” and “the case was merely at the point of concluding when the defendant then decided to enter a … plea of guilty,” the court determined Austin’s acceptance “was not extraordinary, and certainly [it] is not appropriate in this case to give him two points for acceptance of responsibility.”
One thing that Austin’s case shows is how, even when a conviction is not reversed, errors in sentencing can be corrected on appeal that can result in less time in prison.
Federal Appeals and White-Collar Criminal Defense Lawyer in Columbia, SC
Elizabeth Franklin-Best focuses her law practice on federal criminal defense, white collar criminal defense, and federal appeals in Columbia, SC.
For more information, call us at (803) 331-3421 or contact us online to set up a consultation.