IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50536

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MOHAMMAD ARAMI, also known as “Mo”

Defendant-Appellant

Appeal from the United States District Court 

for the Western District of Texas 

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

United States Court of Appeals

Fifth Circuit

F I L E D

July 21, 2008

Charles R. Fulbruge III

Clerk
No. 07-50536

2

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 fivecount 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

(countthree), 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 “recommend[ed] 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 thatthe allegations contained in the factual basis were

incorrect. The district court held a hearing on that motion the next day and
No. 07-50536

3

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 defendantto 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 (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,

“[u]nder 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.
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4

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 F. App’x 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 requestto 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 thatthe 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
No. 07-50536

1 The Fourth Circuit has created a bright-line test for determining when a district court

has accepted a guilty plea, ruling that “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.”

United States v. Battle, 499 F.3d 315, 321 (4th Cir. 2007). In a different case, the Fourth

Circuit held that a magistrate judge may accept a guilty plea under the “additional duties”

residual clause in 28 U.S.C. § 636(b)(3), which sets forth a magistrate judge’s powers, so long

as a defendant consents to having the magistrate judge perform the plea hearing and accept

the plea. United States v. Benton, 523 F.3d 424, 427, 430 (4th Cir. 2008). But see United

States v. Torres-Rosario, 447 F.3d 61, 67 (1st Cir. 2006) (“Technically, because the Rule 11

hearing was conducted by a magistrate judge, the plea acceptance occurred only when the

district judge adopted the magistrate’s recommendation.”). Putting the rules from Battle and

Benton together, the Fourth Circuit likely would rule that when a defendant consents to

having a magistrate judge perform the plea colloquy and accept the plea, the court has

accepted the plea for purposes of Rule 11(d)(1) once the magistrate judge completes the plea

colloquy. Regardless, here, both parties concede that Arami did not consent to having the

magistrate judge accept his guilty plea, so we leave for another day the questions of whether

an acceptance occurs when the court completes the plea colloquy and whether a defendant can

consent to having a magistrate judge accept a guilty plea.

5

district court,the defendant had retained an absolute rightto 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 F. App’x 72, 73 (8th Cir. 2004) (per curiam)

(reversing the district court’s decision denying the defendant’s withdrawal

request because “[t]he 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
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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. 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 affect[s] the fairness, integrity, or

public reputation of judicial proceedings.” Id. (citing United States v. Olano, 507

U.S. 725, 732 (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 rightto withdraw a plea

before the district court accepts it. See Welker, 103 F. App’x at 73 (mentioning

the “plain meaning of the applicable rule”). 

Next, Arami must establish that the error affected his “substantial rights.”

Olano, 507 U.S. at 734. In particular, he must demonstrate that “the probability

of a different result is sufficient to undermine confidence in the outcome of the

proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)

(internal quotation marks omitted). The clear language of Rule 11(d)(1), which

provides a defendant with an unqualified rightto withdraw a guilty plea “for any

reason or no reason,” indicates that any error in the court’s failure to consider

the rule would affect a defendant’s substantial rights. Without the error, Arami
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would have been able to withdraw his guilty plea and proceed to trial, thereby

demonstrating a “probability of a different result” that undermines confidence

in his plea. See id. Indeed, given the unqualified nature of the right to

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

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

substantial rights.

The government argues that the error did not affect Arami’s substantial

rights because he “waived” his ability to withdraw his plea by failing to object to

the magistrate judge’s report and recommendation within ten days. However,

there is nothing in the record to suggest that Arami intentionally relinquished

or abandoned his right to withdraw his plea under Rule 11(d)(1) or that he knew

of his right to withdraw before the district court accepted his plea, so the waiver

doctrine is inapplicable. See United States v. Arivso-Mata, 442 F.3d 382, 384

(5th Cir. 2006) (noting that the waiver doctrine applies only when a defendant

knows of a particular right and consciously chooses to forego it). Additionally,

Arami’s failure to object to the magistrate judge’s report and recommendation

simply means that this court employs the plain error standard of review, not

that Arami cannot assert his right to withdraw his plea at all. See Starns v.

Andrews, 524 F.3d 612, 617 (5th Cir. 2008) (stating that “if a party did not object

to a Magistrate Judge’s Report and Recommendation, that party may not attack

the proposed factual findings or legal conclusions except upon the grounds of

plain error”). In sum, Arami meets his burden of showing that the court’s error

in failing to apply Rule 11(d)(1) affected his substantial rights because the court

should have allowed Arami to withdraw his guilty plea and proceed to trial,

thereby changing the result of the proceeding.

The final question is whether the error “seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at 732

(internal quotation marks omitted). Arami argues that denying him his right to
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8

have a jury determine his guilt satisfies this test. See, e.g., United States v.

Bradley, 455 F.3d 453, 464 (4th Cir. 2006) (“The fact is, the jury rendered no

verdict in this case; there has been no ‘fair and reliable determination’ of the

Defendants’ guilt.”). We agree. Although the government suggests that the

district court discounted Arami’s credibility when he asserted his innocence, this

fact does not support a conclusion that a court can deprive a defendant of his

right under Rule 11(d)(1) to withdraw a guilty plea and proceed to trial if the

court has not yet accepted the plea. Cf. Sullivan v. Louisiana, 508 U.S. 275, 279

(1993) (“[T]o hypothesize a guilty verdict that was never in fact rendered—no

matter how inescapable the findings to support that verdict might be—would

violate the jury-trial guarantee.”). Rule 11(d)(1) sets out an absolute rule

allowing a defendant to withdraw a guilty plea before the court accepts it. It

follows that depriving a defendant of his unconditional right under Rule 11(d)(1)

would affect the fairness, integrity, or public reputation of judicial proceedings

because the defendant would lose his right to take his case before a jury.

If a district court wishes to avoid a similar situation in the future—where

a defendant pleads guilty in front of a magistrate judge and then later seeks to

withdraw the plea before the court accepts it—the district court simply should

accept the plea more promptly. In fact, the court can accept the plea before it

reviews the plea agreement and imposes a sentence. See United States v. Hyde,

520 U.S. 670, 677-78 (1997) (distinguishing a plea from a plea agreement);

Jones, 472 F.3d at 909 (same). But a defendant does not relinquish his right to

have a jury determine his guilt or innocence until the court actually accepts the

defendant’s guilty plea. 

IV. CONCLUSION

At oral argument, Arami’s counsel recognized the huge risk Arami is

taking in seeking to withdraw his guilty plea. Arami has served almost half of
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his prison sentence under his plea agreement, and by withdrawing his plea and

proceeding to trial on all five counts, he risks the possibility of incurring a much

longer jail sentence if he is convicted. Nevertheless, because the district court

had not accepted Arami’s plea before he sought to withdraw it, Rule 11(d)(1)

gives Aramithis choice. Accordingly, we REVERSE the judgment of the district

court and REMAND for Arami to withdraw his guilty plea and proceed to trial.

REVERSED AND REMANDED.