FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

VLADIMIR STEVEN HERNANDEZ, 

Defendant-Appellant.

No.22-50134 

D.C. No. 

2:19-cr-00715-

VAP-1 

OPINION

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, Chief District Judge, Presiding

Argued and Submitted December 5, 2023

Pasadena, California

Filed June 28, 2024

Before: Kim McLane Wardlaw, Kenneth K. Lee, and 

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Lee;

Dissent by Judge Bumatay
2 USA V. HERNANDEZ

SUMMARY*

Criminal Law

The panel vacated the district court’s order denying 

Vladimir Hernandez’s motion to withdraw his guilty plea, 

and remanded, in a case in which the panel addressed 

whether a criminal defendant’s belated realization that his 

safety-valve proffer could lead to reprisal in prison counts as 

a “fair and just” reason to withdraw his guilty plea under 

Federal Rule of Criminal Procedure 11(d)(2). 

The panel held that a defendant must first offer in good 

faith a “new” basis for seeking to withdraw his plea, 

meaning that he subjectively did not know this “new” reason 

for withdrawal at the time of his plea. He then must show 

that objectively he could not have known or anticipated this 

“new” material reason. Even if a defendant offers a goodfaith “new” basis for withdrawing his plea, that reason is not 

a “fair and just” one under Rule 11 if a reasonable person 

could have known about it or anticipated it at the time of the 

plea. 

The panel held that the district court did not err in 

concluding that Hernandez offered in good faith a 

subjectively new basis for withdrawing his plea (i.e., he did 

not know that defendants who obtained safety-valve 

reductions were treated as cooperators by other inmates). 

But the district court did not decide whether objectively 

Hernandez could have known about or anticipated this new 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
USA V. HERNANDEZ 3 

and material reason for withdrawing the plea. The panel 

remanded so that the district court can decide whether a 

reasonable person would have known that people who 

proffer under the safety valve face potential threats in prison 

and how that information would have plausibly affected a 

defendant’s decision-making calculus. 

Dissenting, Judge Bumatay wrote that the majority’s 

new two-part test for withdrawal of a guilty plea is too far a 

stretch from Fed. R. Crim. P. 11(d)(2)(B)’s requirement that 

a defendant must show a “fair and just reason for requesting 

the withdrawal.” He would affirm the district court’s 

decision to deny the withdrawal of the plea. 

COUNSEL

Andrew M. Roach (argued), Assistant United States 

Attorney, Cyber & Intellectual Property Crimes Section; 

Jonathan Galatzan, Assistant United States Attorney; Bram 

M. Alden, Assistant United States Attorney, Criminal 

Appeals Section Chief; Annamartine Salick, Assistant 

United States Attorney, National Security Division Chief; 

Cameron L. Schroeder, Assistant United States Attorney, 

National Security Division Chief; E. Martin Estrada, United 

States Attorney; Office of the United States Attorney, United 

States Department of Justice, Los Angeles, California; for 

Plaintiff-Appellee.

Steven A. Brody (argued), Law Offices of Steven Brody, 

Pasadena, California, for Defendant-Appellant. 
4 USA V. HERNANDEZ

OPINION

LEE, Circuit Judge:

We address whether a criminal defendant’s belated 

realization that his safety-valve proffer could lead to reprisal 

in prison counts as a “fair and just” reason to withdraw his

guilty plea.

When Vladimir Hernandez pleaded guilty to felony meth 

distribution charges, he agreed to tell the government 

everything he knew in exchange for a chance at a lower 

sentence under the safety-valve sentencing provision. But 

soon after Hernandez entered the plea, he apparently learned 

for the first time that other inmates may not take too kindly 

to his cooperation. He now swears that he would not have 

agreed to the favorable plea deal if he had known that 

seeking a safety-valve sentence reduction would subject him 

to potential peril in prison.

District courts may allow a defendant to withdraw a plea 

before sentencing if he offers a “fair and just” reason for 

doing so. See Fed. R. Crim. Pro. 11. We have interpreted 

the “fair and just” standard to include a reason that did not 

exist when the defendant entered the plea. But a defendant 

cannot withdraw his plea for just any “new” reason. To 

withdraw a plea, a defendant must show that (1) the “new” 

reason is being offered in good-faith and that he subjectively 

did not know this reason for his plea withdrawal at the time 

of the plea, and (2) it was objectively reasonable to have not 

known about or anticipated this material new reason, either.

Here, the district court concluded that Hernandez offered 

in good-faith a subjectively new basis for withdrawing his 

plea (i.e., he did not know that defendants who obtained
USA V. HERNANDEZ 5

safety-valve reductions were treated as cooperators by other 

inmates). But the district court did not decide whether 

objectively Hernandez could have known about or 

anticipated this new and material reason for withdrawing the 

plea. We thus vacate and remand for the district court to 

decide that issue. 

BACKGROUND

Vladimir Hernandez entered an open guilty plea related 

to two felony meth distribution charges on November 9, 

2021. At the time of his plea, Hernandez’s attorney advised 

him that unless Ninth Circuit caselaw was overturned, he 

would be eligible for safety-valve treatment (meaning, a 

chance at a sentence below the statutory minimum) if he told 

the government about his involvement in the offense. His 

attorney also assured him that a safety-valve proffer was not 

the same as cooperating with the government or acting as an 

informant on other defendants. Hernandez, who had not

served time in a federal facility, states that he believed his 

attorney. 

While Hernandez was not guaranteed that he would 

receive safety-valve treatment, he was likely to receive it. At 

the time, our decision in United States v. Lopez made him 

eligible to proffer, and he remained eligible unless or until

the Supreme Court overturned Lopez. See 998 F.3d 431, 444 

(9th Cir. 2021).1 And if he proffered truthfully, the district 

court would have had no discretion to deny him the safetyvalve. United States v. Real-Hernandez, 90 F.3d 356, 361 

(9th Cir. 1996). 

1 Lopez has since been abrogated. See Pulsifer v. United States, 144 S. 

Ct. 718, 723 (2024). But the parties agree that we should analyze the 

law as it existed at the time of the plea withdrawal request.
6 USA V. HERNANDEZ

But within five months of entering the plea—before the 

pre-sentencing report came out and despite his safety-valve 

eligibility—Hernandez moved to withdraw it. In his 

withdrawal request, Hernandez explained that, while in 

custody, he learned that even if his safety-valve proffer were

not literally the same as cooperating with the government, 

other inmates would not see a distinction. They would see 

only that Hernandez received a sentence below the statutory 

minimum, assume that he had cooperated with the 

government, and treat him accordingly. So, in other words, 

Hernandez learned that a major benefit of his plea (the 

chance at a sentence below the statutory minimum) came 

with a major downside (being targeted by other inmates). 

Based on this new information, Hernandez “decided that 

the threat to [him] [wa]s too great” and that he would no 

longer seek safety-valve treatment, even if it meant that he 

potentially would have to serve a longer prison sentence. He

swore that he “would not have entered a plea and would 

instead have proceeded to trial or sought some other 

resolution” if he had known this fact earlier.

The month after Hernandez moved to withdraw his plea, 

the district court held a hearing on his request.

2 Hernandez 

argued that the new information about the danger of a safety 

valve proffer was a “fair and just” reason to withdraw the 

plea because it was “not something [Hernandez] could have 

been advised of by an attorney prior to going into custody” 

but “something that he learned after . . . he went into 

custody.” The government argued that Hernandez’s safetyvalve concerns were disingenuous and that he acted “on a 

2 Judge André Birotte presided over the withdrawal motion hearing.
USA V. HERNANDEZ 7

lark” because he was unhappy with the likely length of his 

sentence. 

The district court largely agreed with Hernandez, stating

that it “did not think Hernandez [wa]s doing this on a lark at 

all.” The district court also accepted that Hernandez did not 

know when entering the plea—and “maybe” could not have 

known—that safety-valve proffers were treated as 

cooperation. 

Despite those findings, the district court concluded that 

Hernandez could avoid the consequences of the safety-valve 

proffer by not proffering. And while that would guarantee

that Hernandez received at least a statutory minimum 

sentence, Hernandez had voluntarily accepted the risk of a 

statutory minimum sentence when he entered his plea. 

Because Hernandez’s concerns could be “alleviate[d]”

without withdrawing the plea, the district court found that 

those concerns were not “fair and just” reasons for 

withdrawal and denied the motion. 

Hernandez timely appealed. 

STANDARD OF REVIEW

We review the denial of a motion to withdraw a guilty 

plea for abuse of discretion. United States v. Alber, 56 F.3d 

1106, 1111 (9th Cir. 1995).

ANALYSIS

I. A defendant may withdraw his plea for a “fair and 

just” reason. 

Federal Rule of Criminal Procedure 11(d)(2) permits a 

defendant to withdraw his guilty plea before sentencing if 

“the defendant can show a fair and just reason for requesting 

the withdrawal.” Fed. Rule Crim. Pro. R. 11(d)(2). Given 
8 USA V. HERNANDEZ

the vague definitions of “fair” and “just,” our decisions have 

tried to provide more concrete guidance on when a defendant 

can withdraw his plea deal. To start, we have interpreted 

Rule 11’s “fair and just” standard broadly, requiring district 

courts to freely allow withdrawal anytime the defendant 

provides “any . . . reason for withdrawing the plea that did 

not exist when the defendant entered his plea.” United States 

v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008); see also

United States v. Bonilla, 637 F.3d 980, 983 (9th Cir. 2011). 

Those reasons may include “inadequate Rule 11 plea 

colloquies, newly discovered evidence, intervening 

circumstances, or any other reason for withdrawing the plea 

that did not exist when the defendant entered his plea.” Id. 

(citation, internal quotation marks, and emphasis omitted).3 

But while we have interpreted Rule 11 broadly, not every 

“new reason” a defendant offers will merit withdrawal. The 

district court need not permit a defendant to withdraw his

plea, for example, if the district court does not believe his

reason for doing so is genuine. See United States v. 

Nostratis, 321 F.3d 1206, 1211 (9th Cir. 2003). And even if 

a defendant offers in good faith a new reason to withdraw 

his plea, the district court must consider whether that reason 

could “at least plausibly” have motivated the defendant “not 

to have pled guilty.” Davis, 428 F.3d at 808. 

3 While withdrawal requests often hinge on evidentiary issues, see, e.g.,

McTiernan, 546 F.3d at 1168, that is not always the case. We have also

considered collateral consequences and changes in law to be “new 

reasons” that allow withdrawal. See Bonilla, 637 F.3d at 983 (newly 

discovered risk of deportation); United States v. Davis, 428 F.3d 802,

805 (9th Cir. 2005) (newly discovered information about the defendant’s 

likely sentence); United States v. Rodriguez-Gamboa, 946 F.3d 548, 551 

(9th Cir. 2019) (change in law). 
USA V. HERNANDEZ 9

We thus hold that a defendant must first offer in good 

faith a “new” basis for seeking to withdraw his plea, 

meaning that he subjectively did not know this “new” reason 

for withdrawal at the time of his plea. This “new” reason thus 

cannot be a pretextual excuse to renege on a plea deal and 

must be offered in good faith. He then must show that 

objectively he could not have known or anticipated this 

“new” material reason, either. Only then can the district 

court exercise its discretion to allow a plea withdrawal under 

Rule 11’s “fair and just” standard.

A. A defendant must first offer a good-faith “new”

basis for withdrawing his plea.

A criminal defendant may not withdraw his plea without 

offering a good-faith “new” reason for doing so: he must 

show that he genuinely did not know of this “new” reason to 

withdraw his plea at the time of his plea deal, and that this 

new reason is not a pretextual excuse. Otherwise, a 

defendant may merely be experiencing buyer’s remorse or 

engaging in gamesmanship to undo his plea based on a 

pretextual “new” reason.

In Nostratis, for example, the defendant sought to 

withdraw his plea because he claimed he had not understood 

its terms. 321 F.3d at 1208. The district court rejected that 

explanation, finding that the defendant had instead changed 

his mind about his decision to plea. Id. at 1211. We held 

that the defendant’s cold feet were not a “fair and just”

reason to withdraw the plea: the defendant knew the 

downsides and the risks of his plea when he entered it, and 

he had no good-faith new basis for withdrawing it. Id. 

So too in United States v. Briggs. The defendant there 

claimed that he had “lacked the capacity” to understand his 

plea agreement. 623 F.3d 724, 727 (9th Cir. 2010). The 
10 USA V. HERNANDEZ

district court rejected that claim, finding that it was not made 

in good faith. Id. at 728. Instead, as in Nostratis, the 

defendant’s “true complaint” was simply that he had 

“underestimated the severity of the sentence that he faced”

until he was “face-to-face with the full consequences of his 

conduct.” Id. at 728–29. As in Nostratis, we held that the 

defendant knew the potential severity of the sentence at the 

time he entered his plea, and thus it was not a good-faith, 

“fair and just” reason for withdrawal. Id. 

Put another way, defendants who “plead guilty to ‘test 

the weight of potential punishment’ and then withdraw their 

plea[s] if the sentence is ‘unexpectedly severe’” lack goodfaith, fair and just bases for withdrawing their pleas. 

Nostratis, 321 F.3d at 1211 (quoting United States v. Ramos, 

923 F.2d 1346, 1359 (9th Cir. 1991), overruled on other 

grounds by United States v. Ruiz, 257 F.3d 1030, 1302 (9th 

Cir. 2001)). In other words, a district court can always 

smoke out a pretextual “new” reason for withdrawing a plea 

if it suspects that it is not being offered in good faith. 

The district court here did not abuse its discretion in 

concluding that Hernandez acted on a good-faith basis when 

he sought to withdraw his plea. It rejected the government’s 

claim that Hernandez was engaging in gamesmanship, 

stating instead that the court “d[idn’t] think Mr. Hernandez 

[was] doing this on a lark at all.” And despite the 

government’s insistence otherwise, the district court 

seemingly accepted that Hernandez genuinely did not know 

the dangers of a safety-valve proffer when he entered the 

plea. And contrary to the government’s contention that 

Hernandez merely changed his mind about pleading guilty, 

Hernandez’s proffered reason for withdrawal appears 

sincere. 
USA V. HERNANDEZ 11

First, the timing of his withdrawal request suggests that 

he is not testing the waters or having second thoughts. 

Hernandez sought to withdraw just five months after his plea 

was entered—before his pre-sentencing report had come 

out—at a time when the only “new information” available to 

him was that he learned that he could face reprisals for 

cooperating. See United States v. Garcia, 401 F.3d 1008, 

1013 (9th Cir. 2005) (noting that the timing of a withdrawal 

request can be a “barometer of the defendant’s candor about 

his reasons for withdrawal”). Put differently, this is not a 

case in which a defendant learns that he will face a longer 

sentence than he expected (or than the prosecutors 

recommended), and then tries to wriggle his way out of his 

plea. 

Equally important, Hernandez’s plea withdrawal request 

would have likely led to a more severe sentence, 

undercutting the inference that he is trying to game the 

system to avoid a harsh punishment. Unlike the defendants 

in Nostratis or Briggs who had buyers’ remorse and feared 

long prison sentences, Hernandez was eligible for a safetyvalve treatment at that time but wanted to withdraw his plea 

for reasons primarily unrelated to the length of any prison 

sentence. See Lopez, 998 F.3d at 444. 

We thus conclude that the district court did not err in 

finding that Hernandez acted in good faith and subjectively 

did not know at the time of his plea his “new” basis for 

seeking withdrawal.
12 USA V. HERNANDEZ

B. A defendant must also show that it was objectively 

reasonable that he could not have known about or 

anticipated the “new” material reason for 

withdrawal at the time of the plea.

While the district court found that Hernandez offered a 

good-faith basis for withdrawing his plea, that alone does not 

entitle him to withdraw it. The court still must decide 

whether “proper [information] ‘could have at least plausibly 

motivated a person in [the defendant’s] position not to have 

pled guilty.” McTiernan, 546 F.3d at 1168 (quoting Garcia, 

401 F.3d at 1011–12). In analyzing that requirement, the 

district court must address whether objectively the defendant 

could not have known about or foreseen this “new” material 

basis for withdrawal at the time of his plea. Id. 

Whether a material reason for withdrawing a plea is 

objectively new depends on what the defendant could have

reasonably understood or anticipated when he entered the 

plea. For example, if a defendant was advised of the terms

of his plea before it was entered, those terms cannot later 

serve as “fair and just” reasons for withdrawal. See 

Nostratis, 321 F.3d at 1211. So too if the defendant should 

have known, but subjectively misunderstood, the potential 

severity of his likely sentence. Briggs, 623 F.3d at 728. But 

if a defendant was misled about a term of his plea—and he

could not have been expected to understand it on his own—

the defendant may have an objectively reasonable new basis 

for withdrawing the plea. See Davis, 428 F.3d at 805. 

We have held, for example, that a defendant may 

withdraw his plea if his lawyer misled him about a material 

consequence of his plea agreement and the defendant could 

not have reasonably foreseen that consequence. Id. In 

Davis, the defendant’s counsel “grossly mischaracterized” 
USA V. HERNANDEZ 13

the defendant’s likely sentence, advising that he would 

receive probation when in fact there was “little, if any, 

possibility” that he would be sentenced “to anything close to 

probation.” Id. Because the plea colloquy and information 

available to the defendant did not contradict his counsel’s 

erroneous predictions, we concluded that the defendant may 

not reasonably have questioned counsel’s inaccurate advice. 

Id. at 806–07. We thus remanded for the district court to 

consider whether accurate advice could have “plausibly” 

affected the decision to enter the plea. Id. at 808.

By contrast, consider a defendant who cooperates with 

police, testifies against other defendants, and pleads guilty. 

He may not withdraw his plea—even if he genuinely learns 

later that inmates may view him as a “snitch”—because a

reasonable criminal defendant would be aware of how

inmates may treat cooperators. Cf Nostratis, 321 F.3d 

at 1211. Nor could a defendant withdraw his plea for 

collateral consequences that, even if not spelled out in the 

plea agreement, a reasonable person would expect—such as 

loss of child custody, restrictions on gun ownership or 

voting, or hindered job prospects. In those cases, district 

courts should not permit withdrawal because the defendants’

reasons, even if subjectively new to them, are not objectively 

new and thus not fair and just. 

In short, even if a defendant offers a good-faith “new” 

basis for withdrawing his plea, that reason is not a “fair and 

just” one if a reasonable person could have known about it

or anticipated it at the time of the plea.

The dissent says that our holding “authorizes withdrawal 

based on any new, relevant post-plea information—even 

completely foreseeable information—so long as it was truly 

new to the defendant and not a sham.” Dissent at 22. Not 
14 USA V. HERNANDEZ

so. We expressly state in our opinion that “not every ‘new 

reason’ a defendant offers will merit withdrawal.” Op. at 8. 

We explain that the district court can reject the request to 

withdraw if it doubts that the defendant’s reason is not 

“genuine” or not in “good faith,” even it is purportedly based 

on “new” information. Id. at 8-9. So, for example, we note 

that the district court can reject the request if it believes that 

the real reason for it is “buyer’s remorse or . . . 

gamesmanship to undo his plea.” Id. at 9. Put another way, 

a district court must probe whether the defendant’s claim 

that he subjectively learned this new information is in fact 

being offered in good faith and is not pretextual. And not 

only that, the district court then must examine whether the 

defendant objectively could have been aware of this new 

material information. 

Take the dissent’s hypothetical of a grandmother, who

after returning from a long vacation, learns that her grandson 

pleaded guilty and opposes it. Dissent at 23-24. The dissent 

argues “[u]nder the majority’s view, grandma’s urgings

would be enough to withdraw the plea.” Id. Quite the 

contrary. First, the district court would have to analyze 

whether a defendant is acting in good faith in offering his 

“new” reason. The court may well conclude that this is a 

pretextual and bogus reason to wriggle his way out of a plea 

agreement if, for example, it appears that he raised this 

“new” information only after learning that the PreSentencing Report recommended a more severe sentence. 

And even if the district court concludes that the defendant 

has offered a subjectively new reason in good faith, it still 

must address whether the defendant objectively could have 

known about or foreseen this new material information. One 

of the obvious expected consequences of being convicted of 

a crime is that it will have a negative impact on the 
USA V. HERNANDEZ 15

defendant’s family members and friends. So objectively 

speaking, a defendant should have known that pleading 

guilty—and serving prison time—would have a detrimental 

effect on his grandmother and other family members, even 

if he learns for the first time later that his grandmother 

opposes his guilty plea. And he thus likely would not be able 

to withdraw his plea by invoking his grandmother’s plight. 

In sum, our holding today does not establish a new test, 

nor does it make withdrawing a plea deal “more lenient,” as 

the dissent states. Rather, our decision merely synthesizes 

strands of our case law into a coherent framework for 

analyzing requests for plea withdrawals.4

II. On remand, the district court should consider 

whether Hernandez offered an objectively reasonable 

new “fair and just” reason to withdraw his plea.

The district court here concluded that Hernandez in good 

faith offered a subjectively new basis for withdrawing his 

plea. But rather than decide whether that basis was also 

objectively new, the district court focused on futility and the 

likely outcome if withdrawal was permitted. The district 

court believed that a withdrawal was beside the point 

because Hernandez could refuse to cooperate, not face 

reprisal in prison, and serve the statutory minimum sentence. 

4 The dissent believes that Hernandez’s request to withdraw his plea 

should have been denied because a “defendant cannot withdraw his plea 

because he realizes that his sentence will be higher than he had 

expected.” Dissent at 25. But the district court rejected that 

characterization because the facts suggests that his request is not based 

on his sentence being potentially higher than expected. Hernandez made 

his request before the PSR was issued, suggesting that this was not 

gamesmanship based on a potentially severe sentence. To the contrary, 

he wanted to withdraw his safety-valve plea deal, meaning that he likely 

would receive a more severe sentence. 
16 USA V. HERNANDEZ

And even if he did withdraw his plea, the district court 

reasoned that he would likely end up striking a similar plea 

deal or face conviction at trial and the same statutory 

minimum sentence. Hernandez responds that he would have 

rejected the safety-valve plea deal had he known about the 

treatment of safety-valve cooperators and that he potentially 

could have prevailed at trial.

The district court is perhaps correct that the outcome 

would likely have been the same. But in determining 

whether a plea withdrawal is “fair and just,” it is the 

objective inquiry—whether the “new reason” for withdrawal 

would have “plausibly affected” the decision to plead

guilty—that matters, not the outcome of the case. Davis, 428 

F.3d at 808. 

In Hernandez’s case, a reasonable person might

understand that a defendant who provides information to the 

authorities under a safety-valve provision may face 

retaliation in prison. Thus, one could argue that “new” 

information about a safety valve proffer could not plausibly 

have affected Hernandez’s decision to plead guilty. See 

Garcia, 401 F.3d at 1011–12. In other words, Hernandez 

should have known or anticipated that some inmates would 

disapprove of someone who receives a more lenient sentence 

after cooperating. On the other hand, Hernandez suggests 

that most people would think that safety-valve cooperators 

are different from other defendants who cooperate with or 

testify for the government, and that it was reasonable to think 

they would not be targeted by other inmates. This might 

especially be the case where, as here, he claims that his 

attorney assured him that a safety-valve proffer is “not the 

same as cooperating with the government.” The district 

court suggested in passing that some people “maybe” would 
USA V. HERNANDEZ 17

not have known that safety-valve proffers were treated as 

cooperation. But it did not resolve that question. 

On remand, the district court should decide whether a 

reasonable person would have known that people who 

proffer under the safety valve face potential threats in prison 

and how that information would have plausibly affected a 

defendant’s decision-making calculus. 

CONCLUSION

The district court’s order denying Hernandez’s motion to 

withdraw his guilty plea is VACATED and REMANDED

so that the district court may determine whether Hernandez

offered a fair and just reason for withdrawing his plea. 

BUMATAY, Circuit Judge, dissenting: 

Vladimir Hernandez rolled the dice. He gambled that, 

after pleading guilty, he would receive a reduced sentence 

under the “safety valve” sentencing provision. See 18 

U.S.C. § 3553(f). Yet his gamble did not pay off. He had 

second thoughts about truthfully disclosing his drug 

trafficking activities to the government, which is required for 

safety valve relief. See id. § 3553(f)(5). So he didn’t get a 

sentence below the mandatory minimum because he didn’t 

fulfill his end of the safety-valve bargain. See United States 

v. Thompson, 81 F.3d 877, 879 (9th Cir. 1996) (a defendant 

is not eligible for safety valve if he “chooses to not comply 

with” its proffer requirement). But just because Hernandez 

rolled the dice and came up empty doesn’t mean he gets new 

chips to play the game again. Withdrawing a guilty plea is 

no game. It’s a serious matter—a “grave and solemn act to 

be accepted only with care and discernment.” See Brady v. 

United States, 397 U.S. 742, 748 (1970). 
18 USA V. HERNANDEZ

That’s not to say withdrawal is never permitted. To 

withdraw a guilty plea, a defendant must show a “fair and 

just reason for requesting the withdrawal.” Fed. R. Crim. P. 

11(d)(2)(B). And this “fair and just reason” standard is 

“applied liberally.” United States v. Ortega-Ascanio, 376 

F.3d 879, 883 (9th Cir. 2004) (simplified). Even so, the rule 

must have some limiting principles. After all, permitting 

withdrawal for any reason would give it no teeth. Reflecting 

the seriousness of plea withdrawal, we defer to the discretion 

of the district court to decide these questions. See United 

States v. Mayweather, 634 F.3d 498, 504 (9th Cir. 2010). 

And here, the district court did not abuse its discretion.

Because the majority’s new two-part test for withdrawal 

is too far a stretch from a “fair and just reason,” I respectfully 

dissent.

I.

A.

What exactly does “fair and just reason” mean? At the 

time of the language’s inclusion in the Federal Rules of 

Criminal Procedure in 1983, “fair” was defined as “[h]aving 

the qualities of impartiality and honesty; free from prejudice, 

favoritism, and self-interest” and “[j]ust; equitable; evenhanded; equal, as between conflicting interests.” Fair, 

Black’s Law Dictionary (5th ed. 1979). And “just” meant 

“[c]onforming to or consonant with what is legal or lawful; 

legally right; lawful[;] [c]orrect, true, due” and “[r]ight; in 

accordance with law and justice.” Just, Black’s Law 

Dictionary (5th ed. 1979) (simplified). Of course, these 

definitions reflect the terms’ broad meanings outside the 

context of the criminal justice system. So it’s more 

important to turn to that context.
USA V. HERNANDEZ 19

The “fair and just” phrase appears to come from an old 

Supreme Court case. See Fed. R. Crim. P. 32 advisory 

committee’s note (1983) (discussing Rule 11(d)’s 

predecessor provision). Almost a hundred years ago, the 

Court opined that “[t]he court in exercise of its discretion 

will permit one accused to substitute a plea of not guilty and 

have a trial if for any reason the granting of the privilege 

seems fair and just.” Kercheval v. United States, 274 U.S. 

220, 224 (1927) (simplified). In that case, the Court 

suggested such reasons include a guilty plea “unfairly 

obtained or given through ignorance, fear or inadvertence.” 

Id.; see also Bishop’s New Criminal Procedure, § 747 (4th 

ed. 1895) (“[W]e may assume . . . of permitting prisoners, 

not as of right, but whenever justice or humanity dictates, to 

withdraw any plea, whether dilatory or to the merits, and 

substitute for it any other.”). So while still broad when 

originally formulated, the standard had some heft to it. Not 

any reason will do; withdrawing is appropriate only if it’s 

required.

Other sources show the same thing. The Advisory 

Committee on Criminal Rules provides:

Although the terms “fair and just” lack any 

presence of scientific exactness, guidelines 

have emerged in the appellate cases for 

applying this standard. Whether the movant 

has asserted his legal innocence is an 

important factor to be weighed, as is the 

reason why the defenses were not put forward 

at the time of original pleading.

Fed. R. Crim. P. 32 advisory committee’s note (1983) 

(simplified). The Advisory Committee further cautioned 
20 USA V. HERNANDEZ

that the Rule “rejects” the view that “any desire to withdraw 

the plea before sentence is ‘fair and just’ so long as the 

government fails to establish that it would be prejudiced by 

the withdrawal.” Id. It instead “adopts” the position that 

“the defendant [must] first show[] a good reason for being 

allowed to withdraw his plea.” Id. So under this guidance, 

any reason isn’t sufficient; withdrawal is usually tied to 

reasons related to innocence or asserting a new defense. In 

fact, the Supreme Court has even suggested that a claim of 

innocence isn’t enough; it must be coupled with a valid 

showing that the plea was improperly taken. See Dukes v. 

Warden, 406 U.S. 250, 257 (1972) (despite claimed 

innocence, the defendant could not prove his counsel had a 

conflict of interest affecting his plea and so it was “not a 

reason for vacating his plea” (simplified)).

Our court has historically been on the “lenient” side of 

interpreting “fair and just.” See Paul E. Gartner Jr., 

Withdrawal of Guilty Pleas in the Federal Courts Prior to 

Sentencing, 27 Baylor L. Rev. 793, 794 (1975) (“The Ninth 

Circuit Court of Appeals apparently adopted the lenient rule 

of the District of Columbia Court of Appeals[.]”). We’ve

given broad examples of what’s a “fair and just reason,” 

including “inadequate Rule 11 plea colloquies, newly 

discovered evidence, intervening circumstances, or any

other reason for withdrawing the plea that did not exist when 

the defendant entered his plea.” United States v. McTiernan, 

546 F.3d 1160, 1167 (9th Cir. 2008) (simplified). 

McTiernan represents the current state of our precedent.

And while giving us broad strokes, some of McTiernan’s 

strokes miss the canvas if read in isolation. Indeed, even 

under the most generous reading of the terms, no one would 

say a reason was “fair and just” simply because it “did not 

exist when the defendant entered his plea.” Id. (simplified). 
USA V. HERNANDEZ 21

So despite this capacious language, “each case must [still] 

be reviewed in the context in which the motion arose to 

determine whether, ultimately, a ‘fair and just’ reason 

exists.” Id. So any old “new” reason doesn’t justify 

withdrawal; we still consider whether it is fair and just.

Reading “any other [new] reason” otherwise would 

violate the structure of Rule 11(d). Consider that Rule 11(d) 

permits a defendant to withdraw a plea “for any reason or no 

reason” if it occurs before the court accepts the plea. Fed. R. 

Crim. P. 11(d)(1). But if the defendant waits until after the 

court accepts the plea, as here, the defendant must show that 

withdrawal is for a “fair and just reason.” Id. at 11(d)(2)(B). 

Allowing literally “any other [new] reason” to justify a 

withdrawal after court acceptance of the plea effectively 

eliminates Rule 11(d)(2)(B). It collapses Rule 11(d) into a 

single inquiry that permits the low standard reserved for preacceptance plea withdrawals to authorize post-acceptance 

plea withdrawals. But that’s not what Rule 11(d) says. And 

we should be careful to cast away a standard meant to uphold 

finality and respect for the court.

The “any other [new] reason” language appears to 

originate from United States v. Rios-Ortiz, 830 F.2d 1067, 

1069 (9th Cir. 1987). But that case didn’t purport to set a 

standard of what’s “fair and just.” It simply described what 

happened in that case. Consider its language: “Rios-Ortiz 

does not challenge the adequacy of his Rule 11 hearing, nor 

does he allege newly discovered evidence, intervening 

circumstances, or any other reason for withdrawing his plea 

that did not exist when he pleaded guilty.” 830 F.2d at 1069. 

It’s wild that this descriptive sentence has morphed almost 

40 years later into the primary test under Rule 11(d).
22 USA V. HERNANDEZ

B.

And unfortunately, the majority expands the reach of the 

“any other [new] reason” category. It adopts a new two-part 

test for determining when a “new reason” exists. But that 

test provides little in the way of a limiting principle or 

grounding in the text of Rule 11(d). Under the majority’s 

novel test, a defendant can withdraw a plea if he shows that: 

“(1) the ‘new’ reason is being offered in good-faith and that 

he subjectively did not know this reason for his plea 

withdrawal at the time of the plea, and (2) it was objectively 

reasonable to have not known about or anticipated this 

material new reason, either.” Maj. Op. 4. That’s it. All we 

need is any reason that’s not completely irrelevant and that’s 

subjectively and objectively “new.” I fear the majority 

makes an already too lenient standard even more lenient. It

lowers the bar so much that it risks serious repercussions for 

the future of plea bargaining throughout our circuit. And it 

deepens the gulf from the text of Rule 11(d).

The majority’s new Rule 11(d)(2)(B) test authorizes 

withdrawal based on any new, relevant post-plea 

information—even completely foreseeable information—so 

long as it was truly new to the defendant and not a sham. But 

new, relevant information often emerges after the defendant 

pleads guilty. Recall that only defendants with certain 

criminal history points are eligible for safety valve. See 18 

U.S.C. § 3553(f)(1). The defendant may plead guilty 

without fully knowing how his criminal history will score or 

if he will otherwise qualify for safety valve. He might have 

thought, for example, that a prior conviction aged out and no 

longer scores. Or the government’s preliminary criminalhistory report might not have been complete. After 

Probation conducts a more thorough criminal-history check, 

other convictions might come to light which disqualify the 
USA V. HERNANDEZ 23

defendant from safety valve. Another question mark is if the 

defendant can meet the requirement to “truthfully provide[] 

to the Government all information and evidence the 

defendant has concerning the offense.” See id. § 3553(f)(5). 

Sometimes the defendant isn’t truthful or doesn’t want to 

meet with the government, like here.

So changes in safety-valve eligibility are commonplace 

and completely foreseeable. But we have never said that a 

defendant’s dashed hope for safety valve is good enough 

reason to withdraw a plea. In fact, we’ve suggested the 

opposite. See, e.g., United States v. Rubio-Perez, 357 Fed. 

Appx. 771, 773 (9th Cir. 2009) (unpublished) (affirming 

denial of plea withdrawal after the court denied defendant 

safety valve because he lied about his criminal history); 

United States v. Piedra, 428 Fed. Appx. 713, 715 (9th Cir. 

2011) (unpublished) (affirming the denial of plea withdrawal 

after defendant could not qualify for safety valve because he 

was “untruthful” during his safety-valve interview). 

Condoning “any new reason” to withdraw a plea would 

drastically upset our settled law for guilty pleas and disrupt 

our respect for the finality of these decisions.

And really, any new reason suffices here? Imagine some 

other hypothetical defendant pleaded guilty to an offense 

with a lengthy sentence. Now suppose the defendant’s 

grandmother had been on a long vacation. On her return, she 

learned the defendant had pleaded guilty and subsequently 

begged him not to do so. Under the majority’s view, 

grandma’s urgings would be enough to withdraw the plea. It 

would be subjectively new and in “good faith”—it was the 

first time grandma communicated her views to the defendant 

and it was genuine because the defendant always takes her 

advice to heart. And it would be objectively reasonable that 

the defendant didn’t know earlier—he was in jail and she 
24 USA V. HERNANDEZ

was on vacation. It would also be “material” because the 

defendant’s consideration of his family’s wishes is certainly 

relevant to the decision to plead guilty. But how is this a 

“fair and just reason”? How does this not reduce our 

standard to an all new low? The majority bats away this 

hypothetical by merely saying the defendant “should have 

known” or “anticipated” his grandma’s views—fair enough. 

But the majority doesn’t explain why being in jail and 

grandma being on vacation isn’t a sufficient excuse for not 

knowing that information. And even so, the majority 

basically concedes that a defendant with an objectively good 

excuse for not knowing or anticipating grandma’s wishes 

would be sufficient grounds for withdrawal. This 

hypothetical demonstrates the precise problem with this 

newly minted test—that it can be haphazardly and 

subjectively applied.

Finally, the majority tries to limit its sweeping ruling by 

claiming that the defendant’s “new” reason must be in “good 

faith,” “genuine,” and not “pretextual.” But it’s hard to see 

what invoking these adjectives does here. It should go 

without saying that trying to pull a fast one on the court is 

not a “fair and just” reason to withdraw a plea. Not giving a 

sham reason should be, of course, a necessary condition for 

withdrawing a plea—but the majority also makes it a 

sufficient one. Essentially, the majority adopts an “on-alark” test for withdrawal. As long as there’s no 

gamesmanship and withdrawing wasn’t “on a lark,” any new 

reason suffices. That’s not even close to what Rule 11’s text 

requires.

C.

Rather than go down this road and further diminish an 

already lenient standard, we could have simply followed our 
USA V. HERNANDEZ 25

well-developed precedent holding that “[a] defendant cannot 

withdraw his plea because he realizes that his sentence will 

be higher than he had expected.” United States v. Nostratis, 

321 F.3d 1206, 1211 (9th Cir. 2003); see also United States 

v. Briggs, 623 F.3d 724, 728 (9th Cir. 2010) (a defendant 

cannot “change his plea solely because he underestimated 

the severity of the sentence he faced”); Shah v. United States, 

878 F.2d 1156, 1162 (9th Cir. 1989) (“Nor do we believe 

that fear of receiving a harsh sentence, standing alone, 

constitutes a ‘fair and just’ reason to withdraw a plea.”). 

While on rare “occasion” our court has “allowed a defendant 

to change his plea for such a reason, we have done so only 

in exceptional circumstances,” Briggs, 623 F.3d at 728–29, 

such as when counsel “grossly mischaracterized” the 

defendant’s possible sentence, United States v. Davis, 428 

F.3d 802, 805–08 (9th Cir. 2005). And this high bar makes 

sense. After all, things happen all the time between entering 

a plea deal and sentencing, and our criminal justice system 

wouldn’t benefit from constantly shifting pleas. 

Here, the information Hernandez learned while in 

custody—that other inmates might view his safety-valve 

proffer as cooperation—would only go to the length of his 

sentence. This new information may have caused him to 

choose to forgo safety valve, but—at the end of the day—he 

would be sentenced under the mandatory-minimum offenses 

he knowingly and voluntarily pleaded guilty to. Nothing 

changed about the facts of his case, nothing favorable 

changed in the law, and nothing changed about his defenses 

to the charges. He hasn’t said he is innocent. And he was 

well counseled during plea negotiations. Counsel told him 

he was not guaranteed safety valve and he could be denied 

safety valve for failing to truthfully debrief with the 

government. The new information changed only one 
26 USA V. HERNANDEZ

thing—it made it more likely he’d received a higher 

sentence.

Hernandez’s change of heart is really no different from a 

defendant being denied safety valve because of an 

unsuccessful debrief or a belatedly discovered conviction 

making him ineligible. None of these justify a withdrawal. 

Just because Hernandez now refuses to go through with a 

safety-valve proffer based on the perceived risks of 

debriefing, that does not mean he gets a do-over. See United 

States v. Salazar, 61 F.4th 723, 728 (9th Cir. 2023) (“Being 

labeled a ‘snitch’ or a ‘rat’ undoubtedly carries significant 

risks for inmates. But that is a risk Congress has established 

in the statutory scheme and which every defendant must face 

in order to qualify for safety-valve relief.”). In fact, time has 

shown that Hernandez isn’t even eligible for safety valve 

anyway because our court has been wrongly interpreting 

§ 3553(f) all along. See Pulsifer v. United States, 144 S. Ct. 

718 (2024), abrogating United States v. Lopez, 998 F.3d 431 

(9th Cir. 2021). 

II.

For these reasons, I respectfully dissent and would have 

affirmed the district court’s decision to deny the withdrawal 

of the plea.