US v. Arami

• Decision Date: 21 July 2008
• Docket Number: No. 07-50536.,07-50536.
• Citation: 536 F.3d 479
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mohammad ARAMI, also known as "Mo", Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

536 F.3d 479

UNITED STATES of America, Plaintiff-Appellee, v. Mohammad ARAMI, also known as "Mo", Defendant-Appellant.

No. 07-50536.

United States Court of Appeals, Fifth Circuit.

July 21, 2008.

Joseph H. Gay, Jr., Asst. U.S. Atty. (argued), San Antonio, TX, for U.S.

Stephen M. Orr (argued), Orr & Olavson, Rick J. Kennon, Slater & Kennon, Austin, TX, for Arami.

Before PRADO, ELROD and HAYNES, Circuit Judges.

PRADO, Circuit Judge:

In this appeal, we decide whether a defendant may withdraw his guilty plea before the district court formally accepts that plea. We hold that the Federal Rules of Criminal Procedure afford a defendant that right.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case stems from the investigation of a prostitution enterprise involving illegal aliens in Austin, Texas. Police executed a search warrant at a brothel and found two male illegal aliens acting as "house managers" and two female illegal aliens working as prostitutes. Based on that discovery, police executed additional search warrants at brothels in Austin, Dallas, and Oklahoma City. During the execution of the subsequent search warrant in Austin, police learned that Defendant-Appellant Mohammad Arami ("Arami") was the actual owner of the property used for the brothel. The lease agreement required co-defendant Juan Balderas-Orosco ("Balderas-Orosco"), who ran the brothel, to pay Arami a monthly rent of $2,000. This was apparently an inflated rent amount for the area, which the government alleges Arami charged because he knew that Balderas-Orosco was running a brothel at the property. The government also alleges that Balderas-Orosco allowed Arami free "visits" with the prostitutes. Arami's other involvement in the prostitution enterprise stemmed from Arami's employees at his automotive shop. These employees allegedly drove a van to transport the prostitutes from the airport and bus station to the brothel.

The government presented the case to a grand jury, which returned a five-count indictment against Arami, charging him with transportation for prostitution in violation of 18 U.S.C. § 2421 (count one), coercion and enticement for prostitution in violation of 18 U.S.C. § 2422 (count two), conspiracy to smuggle, transport, and harbor illegal aliens in violation of 8 U.S.C. § 1324 (count three), importation of aliens for immoral purposes in violation of 8 U.S.C. § 1328 (count four), and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) (count five). The government offered to drop counts one through four if Arami would plead guilty to count five. Arami agreed. He then consented to having his Rule 11 plea hearing and entering his plea before a magistrate judge. On February 9, 2007, Arami pleaded guilty in front of a magistrate judge to count five. The magistrate judge "recommended the District Court accept the guilty plea and, after reviewing the presentence investigation report, enter a Final Judgment of guilty against the defendant."

On April 5, 2007, Arami filed a Motion to Withdraw Guilty Plea, asserting his innocence and stating that the allegations contained in the factual basis were incorrect. The district court held a hearing on that motion the next day and denied Arami's request. The district court adopted the magistrate judge's report and recommendation on April 13, 2007, accepting Arami's guilty plea on that date. The court sentenced Arami to twenty-seven months' imprisonment, three years of supervised release, a $64,000 fine, and a $100 special assessment. Arami appeals, asserting that the district court should have allowed him to withdraw his guilty plea.

II. JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction pursuant to 28 U.S.C. § 1291, as the district court entered a final judgment denying Arami's Motion to Withdraw Guilty Plea and sentencing him.

Although Arami raises three issues on appeal, we dispose of this case by addressing only his contention that he had an absolute right to withdraw his guilty plea. Arami argues that the district court violated Federal Rule of Criminal Procedure 11(d)(1), which allows a defendant to withdraw a guilty plea before the court accepts the plea "for any reason or no reason." FED.R.CRIM.P. 11(d)(1). Because Arami raises this argument for the first time on appeal, we apply a plain error standard of review. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).

III. DISCUSSION

A. Rule 11(d)(1)

Federal Rule of Criminal Procedure 11(d) provides, "A defendant may withdraw a plea of guilty or nolo contendere: (1) before the court accepts the plea, for any reason or no reason ...." FED. R.CRIM.P. 11(d). Therefore, "under Rule 11(d)(1) ... the district court has no discretion to deny a pre-acceptance withdrawal of a guilty plea." United States v. Jones, 472 F.3d 905, 908 (D.C.Cir.2007). Before the 2002 amendments to the Rules, there was no explicit provision governing a defendant's withdrawal of a plea before the court accepted it. See United States v. Lopez, 385 F.3d 245, 250 n. 8 (2d Cir.2004). Rule 11(d)(1) now allows withdrawal as a matter of right. Id. Once the court accepts the defendant's plea, however, the defendant may withdraw that plea before sentencing only if the court rejects a plea agreement under Rule 11(c)(5) or if "the defendant can show a fair and just reason for requesting the withdrawal." FED. R.CRIM.P. 11(d)(2). A defendant may not have a guilty plea set aside after the court has imposed a sentence except on direct appeal or collateral attack. FED.R.CRIM.P. 11(e).

We have not previously had the occasion to expound upon the meaning of Rule 11(d)(1). The most analogous case is an unpublished decision from the Eighth Circuit. See United States v. Lozano, 63 Fed.Appx. 962 (8th Cir.2003) (per curiam). There, the defendant appeared before a magistrate judge and pleaded guilty to a drug charge. Id. at 962. The magistrate judge issued a report recommending that the district court accept the defendant's guilty plea. Id. Thirteen days later, before the district court accepted the guilty plea or imposed a sentence, the defendant moved to withdraw his plea. Id. The court denied the defendant's motion. Id. On appeal, the Eighth Circuit noted that the district court improperly considered the defendant's request to withdraw his plea under the "fair and just reason" standard of Rule 11(d)(2), because the district court had not formally accepted the defendant's plea. Id. at 963. The court reversed, ruling that the defendant had an absolute right to withdraw his plea under Rule 11(d)(1), and remanded the case to allow the defendant to withdraw his guilty plea and proceed to trial. Id.

The Eighth Circuit also described the absolute nature of Rule 11(d)(1) in United States v. Head, 340 F.3d 628, 630 (8th Cir.2003). There, the defendant pleaded guilty to aggravated assault but sought to withdraw his plea before sentencing. Id. The court found that the district court had not accepted the defendant's guilty plea at his plea hearing. Id. The court held that, absent explicit language or an implicit acceptance of the defendant's guilty plea by the district court, the defendant had retained an absolute right to withdraw his plea. Id. But see id. at 632 (Ericksen, J., dissenting) ("Short of uttering the magic words, `I accept your plea of guilty,' the district court could have done nothing more to make it clear that it was accepting the defendant's plea.").¹

As this discussion demonstrates, Rule 11(d)(1) is an absolute rule: a defendant has an absolute right to withdraw his or her guilty plea before the court accepts it. Cf. United States v. Stephens, 489 F.3d 647, 654 (5th Cir.2007) ("Following the court's acceptance of his guilty plea, Turner did not have an absolute right to withdraw that plea," thereby implying that the defendant had an absolute right to withdraw the plea pre-acceptance). Here, the record reveals—and the government concedes—that the district court did not accept Arami's plea until eight days after he submitted his motion to withdraw. Cf. United States v. Welker, 103 Fed.Appx. 72, 73 (8th Cir.2004) (per curiam) (reversing the district court's decision denying the defendant's withdrawal request because "the government conceded error on this issue, recognizing that the district court should have permitted Mr. Welker to withdraw his guilty plea" based on the "plain meaning of Rule 11(d)(1)"). Under the clear language of Rule 11(d)(1), Arami had an absolute right to withdraw his plea, and the district court erred in denying Arami's request to do so.

B. Plain Error

Because Arami did not raise any argument involving Rule 11(d)(1) before the district court, this court must review the district court's decision for plain error. See Vonn, 535 U.S. at 59, 122 S.Ct. 1043. There are four steps in this analysis. We must initially determine "(1) whether the district court committed error; (2) whether the error is `clear and obvious'; and (3) whether the error affects substantial rights." United States v. Stevens, 487 F.3d 232, 242 (5th Cir.2007) (internal citations omitted). If these three conditions are present, we still cannot reverse the conviction unless the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

Arami easily satisfies the first two prongs of the plain error test. First, as noted above, the district court committed error under Rule 11(d)(1) by denying Arami's motion to withdraw before the court had accepted his plea. Second, this error was "clear and obvious" because the plain language of Rule 11(d)(1) is unambiguous, as it clearly gives defendants an absolute right to withdraw a plea before the district court accepts it. See Welker, 103 Fed. Appx. at 73 (mentioning the "plain meaning of the applicable rule").

Next, Arami must establish that the error...