FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE: JAMES H. GALLAHER, Jr., 

JAMES H. GALLAHER, Jr.,

Petitioner, No. 07-74593

v. D.C. No.  UNITED STATES DISTRICT CR-05-00224-RHW

COURT FOR THE DISTRICT OF OPINION

WASHINGTON,

Respondent,

UNITED STATES OF AMERICA,

Real Party in Interest. 

Appeal from the United States District Court

for the Eastern District of Washington

Robert H. Whaley, District Judge, Presiding

Argued and Submitted

June 2, 2008—Seattle, Washington

Filed November 13, 2008

Before: M. Margaret McKeown and Consuelo M. Callahan,

Circuit Judges, and Otis D. Wright,* District Judge.**

Opinion by Judge McKeown

*The Honorable Otis D. Wright, United States District Court for the

Central District of California, sitting by designation. 

**This case was argued before Judges Ferguson, Callahan, and Wright.

Following Judge Ferguson’s death, Judge McKeown was substituted for

Judge Ferguson. 

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COUNSEL

Stephen R. Hormel (argued), Federal Defenders of Eastern

Washington and Idaho, Spokane, Washington, for the petitioner. 

Joseph H. Harrington (argued), Assistant United States Attorney; James A. McDevitt, United States Attorney, Spokane,

Washington, for the real party in interest.

OPINION

McKEOWN, Circuit Judge: 

In the classic words of the Rolling Stones, “You can’t

always get what you want.” The Rolling Stones, You Can’t

Always Get What You Want, on Let It Bleed (Decca Records

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1969). A defendant who chooses to take a conditional plea

cannot always assume the court will grant its consent. And, a

district court that wants to review a defendant’s Presentence

Report (PSR) cannot do so until the defendant has granted his

consent or entered a plea. Consequently, we are forced to disappoint both the district court and the petitioner in this appeal.

Because the district court exercised its discretion to deny its

consent to Gallaher’s conditional plea, the petition for a writ

of mandamus must be denied. However, because the district

court erred by prematurely reviewing Gallaher’s PSR, we

remand for further proceedings, and reassign this case to a

new judge to consider de novo whether to accept Gallaher’s

conditional plea. 

I. BACKGROUND

After James H. Gallaher, Jr. was charged with first degree

murder, he entered into a conditional plea agreement. Under

the agreement, he pleaded guilty to involuntary manslaughter,

but reserved the right to appeal the district court’s earlier

denial of his motion to dismiss the indictment.1 The agreement also stipulated that Gallaher could withdraw his guilty

plea if his appeal was successful.2

At the change of plea hearing, the district court expressed

reservations about certain terms in the plea agreement.3 The

1Gallaher’s motion to dismiss alleged that the indictment violated the

applicable statute of limitations. The district court denied the motion, concluding that first degree murder is not subject to a statute of limitations.

We rejected Gallaher’s petition for a writ of mandamus on that issue. Gallaher v. U.S. Dist. Court, No. 06-73909 (9th Cir. Dec. 6, 2006), cert.

denied, 127 S. Ct. 1869 (2007). 

2Gallaher also agreed to waive any ex post facto or statute of limitations

claims related to his involuntary manslaughter plea and to accept a sentence in accordance with the then-current statutory penalties — four to six

years — as opposed to the three-year maximum penalty in effect on the

date he committed the offense. 

3Specifically, the district court questioned the propriety of (1) accepting

a plea to a lesser included offense without first securing a new indictment;

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court then reviewed the agreement with Gallaher and engaged

in a plea colloquy consistent with the requirements of Rule

11(b) of the Federal Rules of Criminal Procedure. The district

court found that Gallaher’s plea was knowing, voluntary,

intelligent, and supported by a sufficient factual basis. The

judge then stated that he would “conditionally approve” the

plea, but that he wanted “to review the pre-sentence report

and then accept it or not.” The following exchange occurred:

Court: What I’m going to do is — this plea binds

me. I’m going to — I want to review the presentence report before I’m sure that I want to accept

this plea. So I’m going to conditionally approve it.

And when I get the pre-sentence report, if there’s a

problem, then I’ll notify the parties; and then we can

come back here. Do you understand that? 

Defense Counsel: Your Honor, are you conditionally accepting the plea agreement or the plea?

There’s two — there’s two layers there, so I’m confused. 

Court: Do I have to accept the plea agreement?

What’s that mean? I’ve never accepted a plea — 

Defense Counsel: You can defer the acceptance of

the plea agreement until the time of sentencing. The

acceptance of the plea, I’m not sure. There’s two

steps in a — 

Court: What I’m saying is that I can come out and

say I’m not going to accept this plea, and you’d be

(2) accepting a plea to involuntary manslaughter which, because of its five

year statute of limitations, could not have been lawfully charged; and (3)

accepting a sentence that allowed the district court to depart from the statutory maximum that existed at the time of the offense. 

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back to what he’s charged with. I think that’s that

[sic] I’m not accepting — I’m conditionally accepting the plea, waiting to see the pre-sentence report.

Does that make sense? 

Defense Counsel: I think so. 

Court: Well, I’m not expecting you to like it. But,

I mean, do you understand what I’m saying? 

Defense Counsel: I understand what you’re —

you’re — 

Court: What I’m trying to say is that I — most of

the time, I accept the plea or don’t accept it; or I

accept it conditioned upon getting the pre-sentence

report. What I want to do is I want to review the presentence report and then accept it or not. 

The district court scheduled sentencing and ordered the

Probation Office to prepare a PSR. The court filed an “Order

Accepting Guilty Plea,” which stated that the plea was “conditionally accepted.” The minutes of the change of plea hearing also noted that the district court “[c]onditionally

accept[ed] plea but will not accept plea until the presentence

report is reviewed.” 

At the sentencing hearing, the district judge noted that the

“plea is conditional and requires the court’s consent.” The district judge then announced that he was “not accepting the conditional plea” and was setting the case for trial:

[I]f the plea was unconditional, I would have no

choice. I would have to accept it. But I’m not accepting the conditional plea. . . . I’m not ruling on the

plea agreement. I’m basing it on the conditional plea.

I’ve got a first-degree murder charge that alleges

facts that are far different than is ultimately required

IN RE: GALLAHER 15373
for me to consider under the conditional plea, and so

I’m not going to accept that. We’ll have to set this

back down for trial. And if you have some other disposition in the meantime, you can let me know. 

Gallaher filed this petition for a writ of mandamus seeking

an order directing the district court to accept his guilty plea,

and the reassignment of his case to a new judge. Although we

review the district court decision for clear error, see In re

Morris, 363 F.3d 891, 891 (9th Cir. 2004) (per curiam), we

consider de novo whether the elements of the mandamus test

are satisfied. Johnson v. Reilly, 349 F.3d 1149, 1154 (9th Cir.

2003). 

II. ANALYSIS

A. JUDICIAL DISCRETION TO WITHHOLD CONSENT

A conditional guilty plea differs in important respects from

an unconditional guilty plea. An unconditional plea may be

deemed accepted once the court has conducted a Rule 11 colloquy and found that the defendant’s plea satisfies the requirements of Rule 11(b). In re Vasquez-Ramirez, 443 F.3d 692,

696 (9th Cir. 2006) (“[T]he act of ‘accepting’ a tendered

guilty plea is non-discretionary once the Rule 11(b) requirements are met.”). 

[1] By contrast, a conditional plea is contingent on the

defendant securing the consent of both the government and

the court. Fed. R. Crim. P. 11(a)(2) (“With the consent of the

court and the government, a defendant may enter a conditional plea of guilty . . . .”). The language of Rule 11(a)(2) is

entirely permissive and “create[s] no enforceable ‘right’ to

enter a conditional plea.” United States v. Fisher, 772 F.2d

371, 374 (7th Cir. 1985).4

4Gallaher advances a plausible argument based on the Advisory Committee Notes to Rule 11(a)(2). The Advisory Committee Notes suggest

15374 IN RE: GALLAHER
[2] The other circuits that have examined the text of Rule

11(a)(2) have concluded that Rule 11(a)(2) does not place any

per se restrictions on how a court may exercise its discretion.

United States v. Bundy, 392 F.3d 641, 647 (4th Cir. 2004)

(stating that a district judge is free to withhold consent from

a conditional plea “for any reason or no reason at all”); United

States v. Bell, 966 F.2d 914, 916 (5th Cir. 1992) (concluding

that the court is “free to reject a conditional plea for any reason or no reason at all”); United States v. Davis, 900 F.2d

1524, 1527 (10th Cir. 1990) (stating that a district court “has

absolute discretion with regard to accepting or rejecting the

conditional plea” and “can refuse to accept a conditional plea

for any reason or for no reason”); Fisher, 772 F.2d at 374

(concluding that the government was free to refuse its consent

“for any reason or for no reason at all”). We decline Gallaher’s invitation to step off the path followed by our sister

circuits. Under Rule 11(a)(2), the district court’s discretion to

reject the conditional plea was not limited in the ways Gallaher suggests. 

B. ACCEPTANCE OF A CONDITIONAL GUILTY PLEA

[3] Having determined that the district court had discretion

to withhold its consent to the conditional guilty plea, we next

consider whether the district court did in fact withhold its consent. At the initial change of plea hearing, the district court

“conditionally approve[d]” the plea, explaining that it “want[ed] to review the presentence report and then accept it or

not.” Both the change of plea order and the minutes stated that

the plea was “conditionally accepted.” The district court later

emphasized that this conditional acceptance was not an

that the consent requirement helps ensure that the issue the defendant

wishes to reserve for appeal is dispositive and sufficiently developed to

allow for an appellate court’s review. However, nothing in the rule itself

or our case law dictates that this is the singular basis on which a court may

refuse its consent. 

IN RE: GALLAHER 15375
expression of consent and explicitly refused to consent to the

conditional plea.5

[4] We do not express an opinion on whether, under different circumstances, a court’s consent to a conditional plea may

be inferred from its actions alone. Here, the district court’s

explicit and repeated rejection of the plea precludes such an

inference. Because the district court exercised its discretion to

reject the plea, the petition for writ of mandamus is denied.

C. RULE 32

[5] Though we deny the petition for mandamus, our review

of the district court proceedings is not yet complete. We must

also decide whether the district court erred by reviewing the

PSR before rejecting Gallaher’s conditional plea. Under Federal Rule of Criminal Procedure 32(e)(1), “Unless the defendant has consented in writing, the probation officer must not

submit a presentence report to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo

contendere, or has been found guilty.” Fed. R. Crim. P.

32(e)(1) (emphasis added).6

The Supreme Court explained in Gregg v. United States

that Rule 32’s non-disclosure provision is “explicit” and that

5The district court stated: “I expressed from the earliest time that I . . .

reserved the acceptance of the plea. I didn’t not accept it on [Rule 11(b)

grounds]; but I didn’t accept it because my consent’s required, and I

reserved that.” The district judge later reiterated that “when I was going

through the litany about whether I accepted the plea or not, I concluded

that I was not ready to consent to the plea; and so I didn’t.” 

6The district judge expressed concern that the court “is the least

informed about the factors that may be relevant to consent” and that “[t]o

deny the district court complete information would result in a lessinformed exercise of discretion.” Nonetheless, Rule 32 only prevents the

district court from reviewing a document which may contain prejudicial

information that “is irrelevant to the determination of guilt or innocence,

and is only relevant to sentencing.” Vasquez-Ramirez, 443 F.3d at 698. 

15376 IN RE: GALLAHER
a court’s premature review of the PSR “constitutes error of

the clearest kind.” 394 U.S. 489, 491, 492 (1969). The Court

admonished that this rule “must not be taken lightly” because

PSRs contain “no formal limitations on their contents, and

they may rest on hearsay and contain information bearing no

relation whatever to the crime with which the defendant is

charged.” Id. at 492. Indeed, allowing “ex parte introduction

of this sort of material to the judge who will pronounce the

defendant’s guilt or innocence or who will preside over a jury

trial would seriously contravene the rule’s purpose of preventing possible prejudice from premature submission of the presentence report.” Id.; see also Vasquez-Ramirez, 443 F.3d at

698 (“The obvious reason for this rule is that the information

in a presentence report, such as criminal history and related

conduct, is irrelevant to the determination of guilt or innocence, and is only relevant to sentencing.”). 

[6] Because the district court did not consent to Gallaher’s

attempt to plead guilty, it follows that Gallaher had not

“pleaded guilty,” and thus the court’s review of the PSR was

premature and in error.7 As in Vasquez-Ramirez, “[t]he district

judge wants to have it both ways — he wants to have access

to information to which he is only entitled once the defendant

is guilty, and then use it retrospectively to decide whether to

accept the defendant’s guilty plea. This is not allowed under

the Rules.” 443 F.3d at 699. 

[7] Both parties agree that if the review of the PSR was in

error, reassignment to a new judge is the appropriate remedy.

This reassignment is not a reflection on the district judge. We

7

In United States v. Cordova-Perez, we upheld a district court’s rejection of a guilty plea even though the district court had reviewed the defendant’s PSR. 65 F.3d 1552, 1556 (9th Cir. 1995). However, the Supreme

Court overturned this holding in United States v. Hyde. 520 U.S. 670, 677

(1997). We decline to mine Cordova-Perez for any aspects that may

remain applicable post-Hyde and reiterate our conclusion that “CordovaPerez is no longer good law.” In re Ellis, 356 F.3d 1198, 1205 (9th Cir.

2004) (en banc). 

IN RE: GALLAHER 15377
have explained that “[g]iven the preliminary nature of the plea

proceedings, the minimal potential for waste or duplication of

judicial resources is outweighed by the need to proceed in a

manner that preserves the appearance of justice.” Ellis, 356

F.3d at 1211. Accordingly, we remand this case for reassignment to a new judge to consider whether to accept Gallaher’s

conditional plea. 

Petition for a writ of mandamus is DENIED; REMANDED

for REASSIGNMENT to a new judge for further proceedings.

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