01-1157 U.S. v. Shaker

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“[W]e cannot construe deferral as acceptance. In United States v. Ellison, 835 F.2d 687, 689-90 & nn. 4-5 (7th Cir. 1987), a case not acknowledged by the government, we explicitly encouraged district courts to defer acceptance of a guilty plea pending review of the PSR. See also United States v. Ewing, 957 F.2d 115, 118 n.2 (4th Cir. 1992) (noting that nothing prevents such a practice). To now construe deferral as acceptance would render meaningless a practice that we have endorsed, and in this case would require us to ignore the district court’s clear expression of intent to defer acceptance.

“Nor are we willing to take an approach that minimizes the importance of the court’s acceptance of the guilty plea. We view a guilty plea as a process involving both the defendant and the district court, and culminating in the court’s acceptance of the plea. The tenor of the Supreme Court’s opinion in United States v. Hyde, 520 U.S. 670 (1997), supports our understanding that acceptance is a crucial part of this process. See id. at 674 (Rule 11 lists ‘steps a district court must take “[b]efore accepting a plea of guilty,” and without which it “shall not accept a plea of guilty.” Based on this language, we conclude that once the court has taken these steps, it may, in its discretion, accept a defendant’s guilty plea.’). Indeed, until the plea is accepted it might be said that there is nothing for the defendant to withdraw.

“Thus, in this case, the district court should have permitted Shaker to withdraw his plea freely, without any inquiry into Shaker’s reasons for seeking to set it aside. When Shaker sought to unwind his plea, the district court had not yet agreed to accept it; Shaker thus needed no explanation for his change of heart.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Indiana, Lozano, J., Per Curiam