IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50102

Cons w/15-50058

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

FRANCISCO ANTONIO COLORADO CESSA, also known as Francisco 

Colorado Cessa, 

 Defendant - Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 1:13-CR-458

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Defendant–Appellant Francisco Antonio Colorado Cessa pleaded guilty

to one count of conspiracy to bribe a public official. Colorado moved to 

withdraw his guilty plea, but the district court denied the motion and 

sentenced Colorado to sixty months of imprisonment. Colorado appeals, 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 22, 2015

Lyle W. Cayce

Clerk

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challenging the district court’s denial of his withdrawal motion. For the 

reasons set out below, we REVERSE and REMAND.

I. Factual and Procedural Background

On October 1, 2013, Defendant–Appellant Francisco Antonio Colorado 

Cessa (Colorado) was indicted by a grand jury and charged—along with two

co-defendants—with one count of conspiracy to bribe a public official, in 

violation of 18 U.S.C. § 371, and one count of bribery of a public official, in 

violation of 18 U.S.C. § 201. The indictment alleged that the defendants sought 

to bribe a United States district judge in exchange for Colorado receiving a 

lesser sentence on Colorado’s previous conviction for conspiracy to commit 

money laundering, in violation of 18 U.S.C. § 1956(h). 

Prior to trial, Colorado and his co-defendants reached global plea 

agreements with the Government. Colorado’s agreement provided that, in 

exchange for pleading guilty to the count of conspiracy to bribe a public official, 

the Government would dismiss without prejudice the count of bribery of a 

public official. Each of the three co-defendants’ plea agreements provided that 

“[t]he terms of this agreement [are] predicated upon acceptance by all three 

defendants of their respective plea agreements.”

On March 12, 2014, Colorado consented to enter his guilty plea before a 

magistrate judge. Colorado’s consent form indicated that he would “be advised 

of [his] rights and enter a voluntary plea of guilty before a United States 

Magistrate Judge . . . subject to the approval of the United States District 

Court.”1 At the hearing before the magistrate judge on the same day, Colorado 

and his co-defendants pleaded guilty following the Rule 11 plea colloquy 

administered by the magistrate judge. The magistrate judge stated at the 

 

1 The district court’s referral order similarly stated that the magistrate judge’s 

administration of the plea would be “subject to the final approval and imposition of sentence 

by th[e district] court.” 

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hearing that he would “recommend to [the district court] that [Colorado’s] plea 

of guilty be accepted.” The magistrate judge further issued a report and 

recommendation as to all three co-defendants, stating “[t]he Magistrate Court 

RECOMMENDS that the District Court accept each of the above-named 

defendant’s plea of guilty and enter final judgment of guilt against the 

defendant.” Colorado did not file any objections to the report and 

recommendation.

The district court initially scheduled sentencing for Colorado and his codefendants for June 27, 2014. On May 21, 2014, the district court sua sponte

reset sentencing for July 14, 2014, and in response, Colorado requested a sixtyday continuance of sentencing due to his counsel’s scheduled vacation. The 

district court granted the continuance and set Colorado’s sentencing for 

October 20, 2014. 

The district court proceeded with the sentencing of Colorado’s codefendants on July 22, 2014. At that hearing, the district court accepted both 

co-defendants’ plea agreements and sentenced the co-defendants, pursuant to 

their plea agreements, to one year and one day imprisonment. The district 

court gave the co-defendants credit for time served. In the concurrent minute 

entries filed in the district court’s docket, the court indicated that it had 

accepted the guilty pleas of both co-defendants. The court neither addressed 

Colorado’s plea, nor mentioned Colorado at all, during this hearing or in the 

minute entries. The co-defendants completed their sentences and were 

deported in September 2014.

After the probation office filed a Presentence Investigation Report (PSR), 

Colorado’s counsel filed two separate motions for extensions of time to file 

objections to the PSR, stating that counsel needed additional time to review 

the PSR and complete the objections. The district court granted both motions, 

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ultimately resetting the deadline for objections to November 10, 2014. The 

district court also reset Colorado’s sentencing for December 19, 2014. 

On December 4, 2014, Colorado moved to withdraw his guilty plea 

pursuant to Federal Rule of Criminal Procedure 11(d)(1), contending that the 

district court had not yet accepted his plea. The Government below agreed 

that Colorado had an absolute right to withdraw his plea and thus “request[ed] 

that [Colorado] should be allowed to withdraw his plea and proceed to trial.”2

However, the district court denied Colorado’s motion in a written order, 

reasoning that Fifth Circuit precedent indicated that a defendant’s guilty plea 

may be implicitly accepted by a district court. The district court concluded that 

“there is clear evidence of actual, or most certainly implied, acceptance of 

[Colorado’s] plea.” The district court noted that a single report was made for 

all three defendants, that the report was accepted at the July 22, 2014, 

sentencing hearing as to Colorado’s co-defendants, and that the “Magistrate’s 

Recommendation regarding [Colorado] would have been formally accepted but 

for the continuances.” “By accepting the other defendants’ pleas,” the district 

court reasoned, “the court signaled in no uncertain terms that it approved of 

[Colorado’s] plea deal as well as that of the others.” Furthermore, “by 

repeatedly requesting the continuances without any indication that he was 

contemplating a plea withdrawal, [Colorado] appears to have concurred with 

the court’s tacit acceptance of his guilty plea.”3

On February 2, 2015, the district court sentenced Colorado to a term of 

sixty months of imprisonment, the statutory maximum. Colorado timely 

appeals.

 

2 On appeal, the Government “recognizes that its earlier response was in error and 

now opposes [Colorado’s] motion.” Appellee’s Br. 22 n.10.

3 The district court also noted that the magistrate judge’s report and recommendation 

had not been forwarded to it, apparently due to a clerical error.

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II. Standard of Review

To begin, the parties dispute the appropriate standard for reviewing the 

district court’s order denying a motion to withdraw a guilty plea. The 

Government argues that this court reviews the decision for an abuse of 

discretion. Colorado counters that the decision should be reviewed de novo.

 “This [c]ourt reviews a district court’s decision to deny a motion to 

withdraw a guilty plea for abuse of discretion.” United States v. McKnight, 570 

F.3d 641, 645 (5th Cir. 2009). In the typical case, a defendant moves to 

withdraw his or her guilty plea after the district court accepted the plea but 

prior to sentencing. E.g., United States v. Harrison, 777 F.3d 227, 231–32 (5th 

Cir. 2015). At that time, a defendant may withdraw the plea only if “(A) the 

court rejects a plea agreement” or “(B) the defendant can show a fair and just 

reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2). But Colorado 

has not contended, either at the district court or on appeal, that he is entitled 

to relief under Rule 11(d)(2).4

Instead, Colorado argues that, under Federal Rule of Criminal 

Procedure 11(d)(1), he may withdraw his plea because the district court never 

accepted it. Rule 11(d)(1) provides that “[a] defendant may withdraw a plea of 

guilty or nolo contendere . . . before the court accepts the plea, for any reason 

or no reason.” Fed. R. Crim. P. 11(d)(1). “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.” United States v. Arami, 536 F.3d 479, 483 (5th Cir. 2008). 

“[T]he district court has no discretion to deny a pre-acceptance withdrawal of 

a guilty plea.” Id. at 482 (emphasis added) (quoting United States v. Jones, 

472 F.3d 905, 908 (D.C. Cir. 2007)); see also United States v. Head, 340 F.3d 

 

4 We therefore do not address the Government’s argument relating to the “fair and 

just reason” requirement under Rule 11(d)(2). 

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628, 629 (8th Cir. 2003) (“[T]he district court erred because it had no discretion, 

under Rule 11(d), to deny [the defendant’s] motion to withdraw his guilty 

plea.”).5 “We review de novo any questions of law underlying the district court’s 

decision.” Yesh Music v. Lakewood Church, 727 F.3d 356, 359 (5th Cir. 2013). 

III. Discussion

Federal Rule of Criminal Procedure 11(d) was amended in 2002 to allow 

a defendant to withdraw a guilty plea “for any reason or no reason” before the 

court accepts the plea. Fed. R. Crim. P. 11(d)(1); Arami, 536 F.3d at 482. As 

courts have noted, however, “Rule 11 is silent as to how a district court must 

signal its acceptance of a guilty plea.” United States v. Battle, 499 F.3d 315, 

321 (4th Cir. 2007); accord United States v. Dávila-Ruiz, 790 F.3d 249, 252 (1st 

Cir. 2015) (“We recognize that Rule 11 does not specify how a plea is to be 

accepted.”). 

Arami provided the Fifth Circuit with the first “occasion to expound upon 

the meaning of Rule 11(d)(1).” Arami, 536 F.3d at 482. In Arami, the 

defendant consented to having his Rule 11 plea colloquy hearing and to 

pleading guilty before a magistrate judge. Id. at 481. Afterwards, the 

magistrate judge prepared a report and recommendation, concluding with a 

recommendation that the district court accept the guilty plea. Id. Before the 

district judge accepted Arami’s guilty plea, Arami moved to withdraw the plea. 

Id. The district court denied the motion, accepted the guilty plea, and 

 

5 Other circuits addressing pre-acceptance withdrawals of pleas under Rule 11(d)(1) 

have adopted a de novo standard of review. United States v. Dávila-Ruiz, 790 F.3d 249, 251 

(1st Cir. 2015) (“A claim that the district court was without discretion to deny such a motion 

is a question of law, engendering de novo review.”); United States v. Salas-Garcia, 698 F.3d 

1242, 1252 (10th Cir. 2012) (“When there is a question of whether the district court has 

actually accepted the defendant’s guilty plea pursuant to Federal Rule of Criminal Procedure 

11, we review the issue de novo.”); United States v. Mendez-Santana, 645 F.3d 822, 827 (6th 

Cir. 2011); Jones, 472 F.3d at 908–09. But see United States v. Battle, 499 F.3d 315, 320 (4th 

Cir. 2007) (noting that “it is unnecessary to determine what standard of review applies” 

because de novo and abuse of discretion review lead to the same result).

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sentenced Arami. Id. Analyzing the application of Rule 11(d)(1) under the 

plain error standard (the defendant failed to raise the issue below), this court 

held that the district court clearly and obviously erred when it denied Arami’s 

motion to withdraw because “Arami had an absolute right to withdraw his 

plea.”6 Id. at 483. According to the court, “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.” Id. The court also found that the error 

affected Arami’s substantial rights and seriously affected the fairness, 

integrity, or public reputation of the judicial proceeding. Id. at 484–85. 

Accordingly, the Arami court reversed and remanded to the district court with 

instructions that the district court allow the defendant to withdraw his plea 

and proceed to trial. Id. at 485. 

The case at hand is materially indistinguishable. Colorado, like Arami, 

consented to holding his plea colloquy and to pleading guilty before a 

magistrate judge, after which the magistrate judge merely recommended that 

the district court accept the plea. And the district court here, like the district 

court in Arami, took no action with respect to Colorado on the magistrate 

judge’s report and recommendation, nor did the court conduct sentencing or 

any related hearings prior to Colorado’s motion to withdraw.7 Thus, as in 

Arami, nothing in the record shows an actual, explicit acceptance of Colorado’s 

plea by the district court.

The Government argues on appeal, however, that the district court 

implicitly accepted Colorado’s guilty plea. After analyzing cases from other 

 

6 Since Arami, the Fifth Circuit has reaffirmed the “absolute, unqualified right” 

embodied in Rule 11(d)(1). United States v. Escobedo, 757 F.3d 229, 231 (5th Cir. 2014).

7 At the July 22, 2014, sentencing hearing, the district court accepted the magistrate 

judge’s combined report and recommendation as to Colorado’s co-defendants, but the court 

never addressed Colorado’s plea, nor even mentioned Colorado, during this hearing or in its 

related docket entries.

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circuits, this court in Arami suggested that a guilty plea could be accepted 

either by “explicit language or an implicit acceptance.” Arami, 536 F.3d at 482 

(citing Head, 340 F.3d at 630); see also United States v. Gutierrez-Gress, 458 F. 

App’x 404, 405 (5th Cir. 2012) (per curiam) (unpublished) (concluding that the 

record showed that the district court implicitly accepted the defendant’s guilty 

plea).

That statement arose in the Arami court’s description of Head. The 

defendant in Head moved to withdraw his plea after the district court held a 

plea colloquy but before the district court formally accepted his plea. Head, 

340 F.3d at 630–31. The Eighth Circuit rejected the argument that the district 

court had implicitly accepted a guilty plea under Rule 11(d)(1) because the 

district court made statements during the plea colloquy hearing indicating that 

it was deferring its final decision whether to accept the guilty plea until 

sentencing. Id.; see also United States v. Mendez-Santana, 645 F.3d 822, 825–

26 (6th Cir. 2011) (assuming, under a similar fact pattern, that a motion to 

withdraw was made before the district court accepted the plea). Other circuits, 

in contrast, have held that a district court accepts a guilty plea pursuant to 

Rule 11 when the district court conducts the plea colloquy and provisionally 

accepts the plea. United States v. Byrum, 567 F.3d 1255, 1262 (10th Cir. 2009); 

see also Battle, 499 F.3d at 321 (“Thus, once the district court has satisfied 

Rule 11’s colloquy requirement, there is a presumption that the court has 

accepted the defendant’s guilty plea.”). 

We need not decide what actions a district court must take during a plea 

colloquy to implicitly accept a plea because, in contrast with the above cases, 

the district court here did not conduct the plea colloquy. The magistrate judge

conducted Colorado’s plea colloquy, but Colorado’s consent form stated that the 

plea was still “subject to the approval of the [district court].” And after 

conducting the plea colloquy, the magistrate judge only recommended that the 

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district court accept the plea. See Dávila-Ruiz, 790 F.3d at 253 (“[E]ven if 

magistrate judges can, by consent, accept pleas in felony cases, that is not what 

happened here. The defendant did not consent to acceptance of his plea by the 

magistrate judge, and the magistrate judge explicitly confirmed that she was 

not accepting the plea.”). Indeed, the courts that have addressed the present 

fact pattern—i.e., the denial of a motion to withdraw after the magistrate 

judge’s report and recommendation but prior to sentencing or conditional 

acceptance of the plea—have concluded that the guilty plea was not accepted 

under Rule 11(d)(1). Arami, 536 F.3d at 483; Dávila-Ruiz, 790 F.3d at 252–53; 

United States v. Lozano, 63 F. App’x 962, 962–63 (8th Cir. 2003) (per curiam) 

(unpublished).

Even if a guilty plea can be implicitly accepted under certain 

circumstances, cases from other circuits suggest that such implicit acceptance 

did not occur here. No court has found implicit acceptance absent some 

affirmative action on the part of the district court with respect to the specific 

defendant at issue beyond referring a plea colloquy hearing to a magistrate 

judge. As noted above, several courts have found implicit acceptance only 

where the district court itself conducted the plea colloquy. E.g., Byrum, 567 

F.3d at 1262; Battle, 499 F.3d at 321–22; Jones, 472 F.3d at 907–09. Other 

cases relied upon by the Government—which, notably, concern the implicit 

acceptance of guilty pleas outside the Rule 11(d)(1) context—involve statements

or actions by the district court at sentencing implying its acceptance of the 

plea. See, e.g., United States v. Morales-Sosa, 191 F.3d 586, 587–88 (5th Cir. 

1999) (per curiam) (concluding that the district court had implicitly accepted 

the plea agreement); United States v. Medina, 182 F.3d 902 (2nd Cir. 1999) 

(unpublished). Here, the district court itself conducted neither Colorado’s plea 

colloquy nor his sentencing prior to his motion to withdraw. Nor did the 

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district court make a statement, at any proceeding prior to the motion,

indicating that it provisionally accepted Colorado’s guilty plea. 

The circumstances unique to this case likewise do not warrant a different 

result. The Government argues that the district court implicitly accepted 

Colorado’s plea by accepting the global plea agreements of Colorado’s codefendants (who, having served their sentences and having been deported, are 

now beyond the district court’s reach) and by failing to notify Colorado that the 

court had rejected Colorado’s plea agreement. Although the district court had 

already accepted the guilty pleas of Colorado’s co-defendants at an earlier 

hearing, it made no statements at that hearing regarding Colorado’s guilty 

plea or plea agreement. The fact that the district court’s acceptance of the codefendants’ pleas may indicate a high likelihood that it would have accepted 

Colorado’s plea does not change the fact that it had yet to accept Colorado’s 

plea within the meaning of Rule 11(d)(1). Furthermore, the lack of any signal 

by the district court that it had rejected Colorado’s plea agreement does not 

show that the district court implicitly accepted Colorado’s plea. The lack of 

any action or statement by the district court points toward the district court’s 

inaction on accepting, not the court’s implied acceptance of, Colorado’s plea. 

Moreover, to the extent that the Government faults Colorado for failing 

to object to the magistrate judge’s report and recommendation, this court has 

already rejected the argument that a defendant “‘waived’ his ability to 

withdraw his plea by failing to object to the magistrate judge’s report and 

recommendation.” Arami, 536 F.3d at 484; see also Dávila-Ruiz, 790 F.3d at 

253 (“Although the absence of a timely objection to a magistrate judge’s report 

and recommendation clears the way for a district court to adopt the 

recommendation and accept the plea, it does not mitigate a district court’s 

failure to do so.”). Colorado’s various requests for continuances also do not 

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alter the “absolute right” contained within Rule 11(d)(1). Arami, 536 F.3d at 

481.8 

We recognize that the interrelation of the co-defendants’ guilty pleas—

each defendant’s plea agreement was predicated on acceptance of the others’—

along with the co-defendants’ removal from this country, could perhaps form 

the basis for an argument based on contract law precluding Colorado from 

withdrawing his plea. But the “absolute right” to withdraw a guilty plea under 

Rule 11(d)(1) would prevail over such an argument. Id. 

We conclude that the district court had not accepted Colorado’s guilty 

plea prior to Colorado’s motion to withdraw his plea. Since “the district court 

has no discretion to deny a pre-acceptance withdrawal of a guilty plea,” Arami, 

536 F.3d at 482 (emphasis added), the district court erred in denying 

Colorado’s motion to withdraw.

Our analysis does not end there. The Government also contends that the 

district court’s failure explicitly to accept Colorado’s plea was a harmless 

error.9 We disagree. Rule 11(h) provides that “[a] variance from the 

requirements of [Rule 11] is harmless error if it does not affect substantial 

rights.” Fed. R. Crim. P. 11(h). The burden is on the Government to show that 

the Rule 11 error was harmless. United States v. Hemphill, 748 F.3d 666, 676 

(5th Cir. 2014). In particular, “[w]e must consider whether it was reasonably 

probable that, but for the district court’s [actions], the defendant would have 

exercised his right to go to trial.” Id. at 672. But as this court previously 

recognized in Arami, “given the unqualified nature of the right to withdraw 

before the court accepts the plea, it is difficult to discern any situation where 

 

8 The failure of the clerk’s office to forward the hard copy of the report and 

recommendation to the district court is a circumstance entirely beyond Colorado’s control and 

does not factor into our analysis.

9 This court has discretion to consider the harmless error issue because it was first 

raised in the appellee’s brief. See United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009).

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an error in failing to apply Rule 11(d)(1) would not affect a defendant’s 

substantial rights.”10 Arami, 536 F.3d at 484.

The Government does not address Arami’s statement as to this point, 

but rather argues that the harmless error analysis turns on whether the 

district court’s error affected Colorado’s decision to plead guilty. The cases the 

Government relies on, however, arise in the context of a district court’s failure 

to properly accept a plea agreement. Morales-Sosa, 191 F.3d 587–88; GutierrezGress, 457 F. App’x at 405; see also United States v. Johnson, 1 F.3d 296, 302 

(5th Cir. 1993) (en banc) (stating that “errors made during Rule 11 colloquies” 

are not harmless where “the defendant’s knowledge and comprehension of the 

full and correct information would have been likely to affect his willingness to 

plead guilty”). Thus, those cases are inapposite.11 See United States v. Hyde, 

520 U.S. 670, 674 (1997) (“Guilty pleas can be accepted while plea agreements 

are deferred, and the acceptance of the two can be separated in time.”).

As this court made clear in Arami, a violation of Rule 11(d)(1) differs 

from other Rule 11 colloquy errors. The latter involve failures by the district 

court to adequately inform the defendant with respect to the defendant’s guilty 

plea, and thus it makes sense for the harmless error analysis to turn on 

whether that lack of information affected the defendant’s plea decision. But 

because the former involves the district court’s denial of “an absolute right to 

withdraw,” Arami, 536 F.3d at 481, the harmless error analysis instead turns 

 

10 Arami’s analysis of whether substantial rights were affected under plain error 

review does not materially differ from the analysis under harmless error. See United States 

v. Olano, 507 U.S. 725, 734–35 (1993) (noting that the harmless error and plain error 

“require[] the same kind of inquiry,” but that the Government, rather than the defendant, 

bears the burden of persuasion under harmless error).

11 So far as those cases may touch upon implicitly accepted guilty pleas, we need not 

address whether an implicit acceptance of a guilty plea is a harmless error because, as 

discussed above, the district court failed to take any action even implicitly accepting 

Colorado’s plea.

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on whether that denial affected the defendant’s decision to plead guilty and 

forgo his right to trial.12 By denying Colorado’s pre-acceptance motion to 

withdraw, the district court necessarily affected Colorado’s substantial rights

by barring Colorado from withdrawing his guilty plea and exercising his right 

to go to trial. Thus, the district court’s denial was not a harmless error.

IV. Conclusion

For the reasons above, we REVERSE the judgment of the district court 

and REMAND with instructions to allow Colorado to withdraw his guilty plea.

 

12 There does not appear to be any authority supporting the Government’s argument 

that Colorado’s co-defendants receiving the bargained-for benefit of their plea agreements 

affects this harmless error analysis.

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