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Motion to Withdraw Guilty Plea in Federal Court
The following summary is offered as a cautionary tale to exemplify how difficult it is to withdraw a plea in federal court, so one should be careful in deciding to plea guilty.
On November 9, 2021, Mr. Vladimir Hernandez pled guilty to two counts of felony distribution of methamphetamine charges and, on the advice of his attorney, agreed to tell the government everything he knew in exchange for a lower sentence under the “safety valve” sentencing provision.
The “safety valve” provision allows a person to offer helpful information to the government in exchange for a chance at sentencing below the statutory minimum of 120 months in federal prison. See United States v. Lopez (9th Cir., 2021) 9298 F. 3d 431, 444; United States v. Real-Hernandez (9th Cir. 1996)) 90 F. 3d 356, 361 (if he proffered truthfully, the judge has no discretion to deny him the safety valve).
Mr. Hernandez’s attorney also assured him that a safety-valve proffer was not the same as cooperating with the government or acting as an informant on other defendants. Mr. Hernandez, who had not served time in a federal prison, stated that he believed his attorney.
However, within five months of entering the plea and before the pre-sentencing report came out – and despite safety valve eligibility – Mr. Hernandez moved to withdraw his plea. In his withdrawal request, he explained that, while in custody, he learned that even if his safety valve proffer were not literally the same as cooperating with the government, other inmates would not see this distinction. They would only see that Hernandez received a sentence below the statutory minimum, assume that he had cooperated with the government and treat him accordingly. So, in other words, Mr. Hernandez learned that a major benefit of this plea (the chance of a sentence below the statutory minimum) came with a major downside: being targeted by other inmates.
Based on this new information, Mr. Hernandez “decided that the threat to [him] [wa]s too great and that he would no longer seek safety-valve treatment, even if it meant that he potentially would have to serve a longer sentence.” He swore that he “would not have entered a plea and would instead have proceeded to trial or sought some other resolution” if he had known this fact earlier.
About a month after Mr. Hernandez moved to withdraw his plea, the district court of Southern California, Judge Virginia A. Phillips, held a hearing on this request. Judge Phillips largely agreed with Mr. Hernandez, but denied his request to withdraw his plea and instead suggested he simply not make a proffer and that his reason of potential mistreatment by other prisoners was not a “fair and just” reason to withdraw his plea.
Mr. Hernandez then appealed this ruling to the U.S. Court of Appeals for the Ninth Circuit in Pasadena.
However, not every “new reason” defendant offers will merit withdrawal. The district court need not permit a defendant to withdraw his plea, for example, if the district court does not believe his reason for doing so is genuine. See United States v. Nostratis (9th Cir. 2003) 321 F. 3d 1206, 1211. In other words, this “new reason” cannot be a pretextual excuse to renege on a plea deal and must be offered in good faith. Defendant must then show that objectively he could not have known or anticipated that this “new” material reason, either. Only then can a district court exercise its discretion to allow a plea withdrawal under Rule 11’s “fair and just” standard.
On November 9, 2021, Mr. Vladimir Hernandez pled guilty to two counts of felony distribution of methamphetamine charges and, on the advice of his attorney, agreed to tell the government everything he knew in exchange for a lower sentence under the “safety valve” sentencing provision.
The “safety valve” provision allows a person to offer helpful information to the government in exchange for a chance at sentencing below the statutory minimum of 120 months in federal prison. See United States v. Lopez (9th Cir., 2021) 9298 F. 3d 431, 444; United States v. Real-Hernandez (9th Cir. 1996)) 90 F. 3d 356, 361 (if he proffered truthfully, the judge has no discretion to deny him the safety valve).
Mr. Hernandez’s attorney also assured him that a safety-valve proffer was not the same as cooperating with the government or acting as an informant on other defendants. Mr. Hernandez, who had not served time in a federal prison, stated that he believed his attorney.
However, within five months of entering the plea and before the pre-sentencing report came out – and despite safety valve eligibility – Mr. Hernandez moved to withdraw his plea. In his withdrawal request, he explained that, while in custody, he learned that even if his safety valve proffer were not literally the same as cooperating with the government, other inmates would not see this distinction. They would only see that Hernandez received a sentence below the statutory minimum, assume that he had cooperated with the government and treat him accordingly. So, in other words, Mr. Hernandez learned that a major benefit of this plea (the chance of a sentence below the statutory minimum) came with a major downside: being targeted by other inmates.
Based on this new information, Mr. Hernandez “decided that the threat to [him] [wa]s too great and that he would no longer seek safety-valve treatment, even if it meant that he potentially would have to serve a longer sentence.” He swore that he “would not have entered a plea and would instead have proceeded to trial or sought some other resolution” if he had known this fact earlier.
About a month after Mr. Hernandez moved to withdraw his plea, the district court of Southern California, Judge Virginia A. Phillips, held a hearing on this request. Judge Phillips largely agreed with Mr. Hernandez, but denied his request to withdraw his plea and instead suggested he simply not make a proffer and that his reason of potential mistreatment by other prisoners was not a “fair and just” reason to withdraw his plea.
Mr. Hernandez then appealed this ruling to the U.S. Court of Appeals for the Ninth Circuit in Pasadena.
The Ninth Circuit first explained that under Federal Rule of Criminal Procedure 11(d)(2), a person may withdraw his or her guilty plea before sentencing if “the defendant can show a fair and just reason for requesting the withdrawal.” Given the vague definitions of “fair” and “just,” decisions on when a defendant can withdraw his or her plea must be evaluated for more concrete guidance on such grounds. Such examples include “inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.” United States v. McTiernan (9th Cir., 2008) 546 F. 3d 1160, 1167.
However, not every “new reason” defendant offers will merit withdrawal. The district court need not permit a defendant to withdraw his plea, for example, if the district court does not believe his reason for doing so is genuine. See United States v. Nostratis (9th Cir. 2003) 321 F. 3d 1206, 1211. In other words, this “new reason” cannot be a pretextual excuse to renege on a plea deal and must be offered in good faith. Defendant must then show that objectively he could not have known or anticipated that this “new” material reason, either. Only then can a district court exercise its discretion to allow a plea withdrawal under Rule 11’s “fair and just” standard.
The Ninth Circuit therefore vacated Judge Phillips’ ruling and remanded the case for further proceedings to decide whether a reasonable person in Mr. Hernandez’s position 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 calculus.
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