PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOHN MIGUEL SWAN, Defendant - Appellant. No. 22-6132

________________ _________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:21 -CR-00028-F-1)

________________ _________________ Keith Bradley of Squire Patton Boggs (US) LLP (Virginia L. Grady, Federal Public Defender; Leah D. Yaffe, Assistant Federa l Public Defender, on the opening brief), Denver, Colorado, for Defendant-Appellant. Allison B. Christian, Assistant United States Attorney (Robert J. Troester, United States Attorney, and Jackie Hutzell, Assistant United States Atto rney, with her on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

________________ _________________ Before MATHESON , BACHARACH , and MORITZ , Circuit Judges.

________________ _________________ MORITZ , Circuit Judge.

________________ _________________ John Swan appeals the district court’s denial of his presentence motion to withdraw his guilty plea. At the hearing on Swan’s motion, plea counsel testified that he told Swan, who is Black, that all minor ities would be removed from his jury and FILED United States Court of Appeals Tenth Circuit 

### January 23, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 12 that his case would be tried before ex clusively white jurors. This material misrepresentation about Swan’s right to an impartial jury selected through racially nondiscriminatory means occurr ed just before Swan told plea counsel that he wanted to plead guilty. What’s more, counsel’s misrepresentation wa s neither corrected during the district court’s plea colloquy nor negated by Swan’s prior experience in the criminal-justice system. Under these circumstances, Swan’s plea was unknowing and involuntary, and the district court abus ed its discretion in denying Swan’s motion to withdraw his guilty plea. We reverse a nd remand for the district court to allow Swan to withdraw his guilty pl ea and for further proceedings. Background While arresting Swan on a warrant st emming from state domestic-violence charges, Oklahoma police officers saw a mmunition “f[a]ll from somewhere on . . . Swan’s person” and land on the ground. R. vol. 1, 96. The video of the arrest from the officers’ body cameras does not show the ammunition falling out of Swan’s pocket, but still images taken from the bodycam footage show ammunition on the ground near where Swan was taken down. Based on this incident, a grand jury indicted Swan for being a fel on in possession of ammunition. See 18 U.S.C. § 922(g)(1). Swan entered a guilty plea, which the district court accepted after conducting a plea colloquy. Five months later, the district court allowed Swan’s plea counsel to withdraw after finding a complete breakdown of effe ctive communication a nd the absence of a workable attorney-cli ent relationship. On the same da y, it appointed new counsel for Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 23 Swan. Around two months later, Swan wrote a pro se letter to the district court asserting his factual innocence and indicati ng that plea counsel had “compelled” him to plead guilty. R. vol. 1, 38. The district court treated this le tter as a motion to withdraw the plea and ordered additional br iefing. Swan’s counsel then filed an expanded motion to withdraw the plea, argui ng that Swan was factually innocent. Counsel also argued that Swan’s plea wa s unknowing and involuntary because Swan “believed, based on his discus sions with [plea] counsel, th at he had no choice but to plead guilty because it would be his word ag ainst the word of the police, and that he would necessarily be di sbelieved by a jury.” Id. at 52. At the hearing on the motion to withdraw the plea, Swan testified that he was factually innocent and said that the complete video footage of his arrest showed that law enforcement had planted the ammunition af ter his arrest. He further testified that he “didn’t feel like [he] was going to be able to get a fair trial” and that the jury would believe the officers ove r him. R. vol. 3, 21. Testifying for the government, plea couns el explained that in his meetings with Swan, he showed Swan still images from the bodycam footage of the arrest, as well as a short clip of the footage, but not the entire video. He explained that although the video did not show the ammun ition falling out of Swan’s pocket, the still images showed “Swan being placed on th e ground, . . . being picked up, and then the clip being within close proximity of where he was placed facedown.” Id. at 48. Describing his final meeting with Swan, plea counsel said that he showed Swan the Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 34 video clips and still photos again and told “Swan that it would be his word against all of the officers that were present.” Id. Plea counsel further testified that he told Swan, during this final meeting, that the jury “would be [composed] of no one of minority color.” Id. More than that, plea counsel also agreed on cross-examination th at he had told Swan the jury “would be culled of any minorities.” Id. at 64. According to plea counsel, Swan paused after receiving this information and then said “t hat he was going to go ahead and enter a plea of guilty.” Id. at 49. Plea counsel testified that he told Swan he would not let Swan plead guilty if the ammunition was not Swan’s. Then, plea counsel stated, Swan “disclosed . . . that it was his.” Id. The parties then offered closing argum ents, with the gove rnment contending that Swan’s assertion of factual innocence was not cred ible, that his plea was knowing and voluntary, and that he had cl ose assistance of counsel. Swan’s counsel argued to the contrary on each point. In so doing, Swan’s counsel twice emphasized that plea counsel’s statemen t about the all-white jury contributed to Swan being compelled to ente r a guilty plea. Ruling from the bench, the district cour t devoted most of its discussion to concluding that Swan’s assertion of fact ual innocence was “not credible” because Swan merely “had a change of heart afte r he saw the full videos in terms of his evaluation of his odds” and “offered nothing other than his sp eculation that these officers would have been motiv ated to, would have been willing to, and did, in fact, plant the [ammunition].” Id. at 92–93. The dist rict court also briefly concluded that Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 45 Swan had close assistance of counsel and that his plea was knowing and voluntary. On the latter point, it did not mention pl ea counsel’s commentary about the selection and makeup of Swan’s potential jury and instead reasoned that because Swan had prior experience with the crim inal-justice system, he unde rstood what it meant to plead guilty. Overall, the district court conc luded that Swan failed to show a fair and just reason to withdraw his pl ea and thus denied the motion. 1 At sentencing, the district court imposed the statutor y maximum of ten years in prison, 2 followed by three years of supervised release. 3 Swan appeals. Analysis Swan argues that the distri ct court erred in refusing to allow him to withdraw his plea. Reviewing that decision, we woul d typically ask whether the district court abused its discretion in asse ssing, under this circuit’s a pplicable seven-factor test, whether Swan “‘establish[ed] a fair and just reason’ for his request” to withdraw his

1 About two months after the district c ourt’s ruling, the Supreme Court decided New York State Rifle & Pist ol Ass’n, Inc. v. Bruen , 597 U.S. 1 (2022). The next month, Swan filed a pro se motion to rec onsider the ruling on his motion to withdraw his plea. The district cour t permitted argument on the rec onsideration motion prior to sentencing, and there Swan’s counsel also argued that Swan should be entitled to withdraw his plea on grounds of legal innocence because the felon-in-possession statute was unconstitutional under Bruen . The district court rejected the Bruen argument and denied the mo tion for reconsideration. 2 The statutory maximum for this crim e has since increased to 15 years. See Bipartisan Safer Communities Act, Pub. L. 117-159, sec. 12004(c), 136 Stat. 1313, 1329 (2022) (codified at 18 U. S.C. § 924(a)(2), (8)). 3 Swan’s sentencing range under the Un ited States Sentencing Guidelines was 57 to 71 months, based on a total offense le vel of 18 and a criminal-history category of VI. The district court imposed a l onger sentence based primarily on concerns about Swan’s lengthy criminal history, not ing that prior sentences had not deterred him and that he needed to be incapacitated. Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 56 plea. United States v. Dominguez , 998 F.3d 1094, 1103–04 (10th Cir. 2021) (quoting United States v. Marceleno , 819 F.3d 1267, 1272 (10th Cir. 2016)); see also Fed. R. Crim. P. 11(d)(2)(B) (allowing withdrawal of plea before sentencing if “defendant can show a fair and just reason for reque sting the withdrawal”). But one of those seven factors, and one that Swan raises on appeal, is whether the plea was knowing and voluntary. See Dominguez , 998 F.3d at 1103–04. The re quirement that a plea be knowing and voluntary stems from the Du e Process Clause of the Fourteenth Amendment and is a legal issu e that we review de novo. United States v. McIntosh , 29 F.4th 648, 655 (10th Cir. 2022); see also id. at 655 n.1 (explaining that district court necessarily “abuses its discretion if it denies a motion to withdraw a plea that was not knowingly and voluntarily entere d”). We therefore begin—and ultimately end—our assessment of Swan’s overall wit hdrawal argument with his position that his plea was not knowing and voluntary. A knowing and voluntary plea “must be ‘deliberate and intelligent and chosen from available alternatives.’” Id. at 655 (quoting United States v. Libretti , 38 F.3d 523, 529 (10th Cir. 1994), aff’d , 516 U.S. 29 (1995)). Stated differently, “[t]o enter a plea that is knowing and voluntary, the de fendant must have ‘a full understanding of what the plea connotes and of its consequence.’” Marceleno , 819 F.3d at 1276 (quoting United States v. Hurlich , 293 F.3d 1223, 1230 (10t h Cir. 2002)). Thus, and as relevant here, “[a] pl ea may be involuntary when an attorney materially misinforms the defendant of th e consequences of the plea.” Fields v. Gibson , 277 F.3d 1203, 1213 (10th Cir. 2002) (quoting United States v. Rhodes , 913 F.2d 839, Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 67 843 (10th Cir. 1990)). In th at instance, “the defendant must show the plea was a product of [the] material misrepresentation [],” meaning that he or she “relied” on the misrepresentation or that the misreprese ntation impacted the decision to plead. United States v. Williams , 919 F.2d 1451, 1456 (10th Cir. 1990). Swan contends that his plea was not knowing or voluntary “because he was informed that one of the rights he was wa iving by pleading guilty—his right to an impartial jury trial—was effectively nonexistent. ” Aplt. Br. 18. In s upport, he relies on plea counsel’s testimony that the jury “w ould be [composed] of no one of minority color” and that Swan “wasn’t going to ge t a very good jury because it would be culled of any minorities.” R. vol. 3, 48, 64. Swan contends this statement materially misrepresented the nature of his right to an impartial jury , and he asserts that this misrepresentation impacted hi s decision to enter his plea. To its credit, the government does not di spute that plea c ounsel’s commentary on the selection process for and racial makeup of Swan’s hypothetical jury fundamentally and materially misrepresent ed the constitutional guarantees of being tried by a jury of one’s peers that is selected without racial discrimination. 4 As the Supreme Court has long held, “[p]urposeful ra cial discrimination in selection of the venire violates a defendant’s right to e qual protection because it denies him the

4 The government also does not argue that Swan forfeited this argument by failing to make it below and waived it on a ppeal by failing to argue for plain error. The government has therefore waived any such argument. See United States v. Heckenliable , 446 F.3d 1048, 1049 n.3 (10th Cir. 2006) (holding that government “waived the waiver” where it did “not argue [d]efendant waived his present challenge”). Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 78 protection that a trial by jury is intended to secure.” Batson v. Kentucky , 476 U.S. 79, 86 (1986); see also Flowers v. Mississippi , 139 S. Ct. 2228, 2243 (2019) (“Equal justice under law requires a criminal tria l free of racial discrimination in the jury[-]selection process.”). Thus, as the gove rnment does not dis pute, plea counsel’s statement to Swan was a material misrepre sentation about one of the rights Swan was sacrificing by pleading guilty. The government nevertheless argues that this material mi srepresentation did not render Swan’s plea unknowing and invol untary. It first se eks to elevate the applicable standard that Sw an must meet from showing a material misrepresentation that rendered his plea unknowing and in voluntary to establishing a claim for ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668 (1984). For support, it re lies on habeas cases involvi ng claims of plea-stage ineffective assistance of counsel for the proposition that “[w]hen an involuntariness claim rests on the faulty legal deci sions or predictions of defense counsel, the plea will be deemed constitutionally involuntary onl y when the attorney is held to have been constitutionally ineffective.” Worthen v. Meachum , 842 F.2d 1179, 1184 (10th Cir. 1988) (emphasis added), overruled on other grounds by Coleman v. Thompson , 501 U.S. 722, 750 (1991); see also Hill v. Lockhart , 474 U.S. 52, 56 (1985) (“Where, as here, a defendant is repr esented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntar iness of the plea depends on whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’” (quoting McMann v. Richardson , 397 U.S. 759, 771 (1970))). Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 89 But Strickland doesn’t apply here. Swan’s argum ent is not that plea counsel ineffectively made a “faulty legal decision or prediction,” Worthen , 842 F.2d at 1184—his argument is that plea counsel mate rially misrepresented the nature of his right to a jury trial and rendered his waiv er of that right unkn owing and involuntary because he did not know what he was su rrendering. In other words, Swan does not take issue with the quality of his representation as it pert ains to plea counsel’s legal guidance specific to his case; rather, he states that he did not understand one of the rights he was giving up because plea counsel materially mischaracterized that right. Cf. Worthen , 842 F.2d at 1183–84 (applying Strickland to claims that plea counsel misrepresented when defenda nt would be paroled, that defendant would receive immunity on other charges, and that counsel would repr esent defendant in other matters). Indeed, we have often separa tely examined clai ms of attorney misrepresentation in the knowing-a nd-voluntary context outside of Strickland

. See Laycock v. New Mexico , 880 F.2d 1184, 1186–87 (10th Cir. 1989) (assessing voluntariness of plea in li ght of attorney’s alleged ma terial misstatements about potential for suspended sentence separately from five ineffectiven ess claims subject

to Strickland ); United States v. Rhodes , 913 F.2d 839, 842–44 (10th Cir. 1990) (assessing voluntariness of plea in light of attorney’s a lleged material misstatements about likely length of sentence and then re viewing ineffectiveness claim separately, under Strickland ); United States v. Carr , 80 F.3d 413, 416– 19 (10th Cir. 1996) (analyzing voluntariness of plea under three arguments , only one of which also constituted ineffectiveness clai m). We take the same path here and review Swan’s Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 910 claim as he presents it: a claim that his plea was not know ing and voluntary. Under that standard, Swan must show th e material misrepresentation impacted his decision to plead guilty. See Williams , 919 F.2d at 1456. The record here establishes just that. Plea c ounsel recalled concluding his fi nal meeting with Swan by “inform[ing] . . . Swan that it would be [Swa n’s] word against all of the officers that were present, the body[-]cam footage, and ju rors that would be [composed] of no one of minority color.” R. vol. 3, 48. And on cr oss-examination, plea counsel agreed that he in fact told Swan all minorities woul d be removed from the jury. The government then asked plea counsel what Swan decided to do; plea counsel replied that “Swan at that point paused” and “then [said] that he was going to go ahead and enter a plea of guilty.” Id. at 49. This testimony and timeline esta blishes that Swan relied, at least in part, on plea counsel’s mate rial misrepresentation. 5 The government asserts that Swan cannot show reliance because his motions to withdraw his plea did not mention plea counsel’s misrepresentation and instead focused on factual innocence. But when thos e motions were filed, Swan did not yet know he had been materially misinformed a bout his jury-trial right, and thus neither did his counsel. Moreover, the pro se motion mentioned that plea counsel’s

5 To be sure, plea counsel later indicated that “the still phot os and the clip of the video” are what “changed” Swan’s assertions of inno cence into a desire to plead guilty. R. vol. 3, 71. And the district court noted “that [Swan’s] decision to plead guilty was driven by the fact s and by [his] realistic asse ssment of his chances at trial.” Id. at 88. But Swan viewed the photos and video clip during the same conversation in which plea counsel materially misrepresented the jury-trial right, and we cannot separate the two—particularly in light of plea counsel’s description of precisely when, during their final conve rsation, Swan decided to plead. Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 1011 statements “compelled” him to plead, and Swan’s counseled motion asserted that Swan thought he would be “disbelieved” by a jury: both concerns would reasonably flow from being told that the jury would be culled of all minorities. R. vol. 1, 38, 52. The government also argues that Swan’s prior experience with the judicial system proves that plea counsel ’s misrepresentation did not make a difference to his decision to plead guilty b ecause Swan necessarily kne w how jury trials work. 6 But as Swan replies, the record cont ains nothing about the nature of his prior experiences in criminal court. Indeed, although the govern ment notes that Swan cited his prior criminal-court experience as one of the re asons he was entering a guilty plea, such fact does not assist the government—for all we know, he had an all-white jury in that prior case, which would only re inforce the material misrep resentation at issue here. In short, that Swan has prio r experience in criminal cour t does not mean he could not have relied on plea counsel’s material misrepresentation in this case. Last, the government invokes the thoroughn ess of the district court’s colloquy under Federal Rule of Criminal Procedure 11 at the change-of-plea hearing. But the Rule 11 colloquy is not the source of the mi srepresentation at issue here, so the government’s argument puts the cart before the horse. Cf. Williams , 919 F.2d at 1456 (“Both the attorneys and th e court have a duty to appr ise the defendant of the consequences of the plea and en sure that it is voluntary.”). Even if “[n]othing in Rule 11 requires a court to advise a defendant that he is giving up his right to a fair,

6 Recall that Swan’s prior experience in the criminal-justice system was also the basis for the district court’ s knowing-and-vol untary ruling. Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 1112 impartial, or unbiased jury,” Aplee. Br. 13, the more relevant question here is whether anything in the Rule 11 coll oquy negated or overcame plea counsel’s material misrepresentation about Swan’s jury-trial rights. See Dominguez , 998 F.3d at 1106 (noting that defendant di d “not contest the sufficie ncy of the court’s Rule 11 colloquy” but addressing other circumst ances that could have rendered plea unknowing or unintelligent). A nd there is no dispute here that the district court did not delve into the right to an impartial jury sele cted without racial bias, effectively (although certainly unintentionally) allowing plea counsel’s misrepresentation to stand uncorrected. Thus, we reject the government’s Rule 11 argument. In sum, because plea counsel advised Swan that his jury would be culled of all minorities—suggesting implicitly “that [Swan] would not r eceive a fair trial because of race”—Swan was materially misinformed about the nature of one of the rights he was sacrificing by pleading guilty: his right to a jury trial, which includes the right to a jury of his peers selected via nondiscriminatory means. Aplt. Br. 13. And plea counsel’s testimony establishe d that Swan relied on this misrepresentation when deciding to plead guilty. Nothing in the Rule 11 colloquy corrected the misrepresentation; nor, on this record, did Swan’s prior experience with the criminaljustice system. We therefore hold that Swan’s plea was not knowing and voluntary and that the district court accordingly abus ed its discretion in denying Swan’s motion to withdraw his plea. 7 See McIntosh , 29 F.4th at 655 n.1 (“[A] di strict court abuses its

7 We reach this conclusion based solely on the knowing-and-voluntary requirement and thus need not consider Swan’s arguments on other plea-withdrawal Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 1213 discretion if it denies a motion to wit hdraw a plea that was not knowingly and voluntarily entered.”).
Conclusion Swan’s plea was not knowing and vol untary because, during the conversation in which he decided to plead guilty, his pl ea counsel materially misrepresented his right to an impartial jury selected through racially non discriminatory means. We therefore reverse the district court’s denial of Swan’s motion to withdraw his guilty plea and remand for the district court to a llow Swan to withdraw his plea and for further proceedings.

factors, including factual and legal innocence. But we pause to note that to the extent that Swan’s legal-innocence argument seek s broader relief than simply withdrawing his plea (he asserts that his statute of conviction is unconstitutio nal), we are bound to follow our recent decision in Vincent v. Garland , 80 F.4th 1197 ( 10th Cir. 2023). See United States v. Lira-Ramirez , 951 F.3d 1258, 1260–61 ( 10th Cir. 2020) (“We must generally follow our precedents absent en banc consideration.”). As Swan acknowledges, Vincent forecloses his position that th e felon-in-possession statute is unconstitutional under Bruen , and he now maintains th at argument solely for preservation purposes. Appellate Case: 22-6132 Document: 010110988392 Date Filed: 01/23/2024 Page: 13