United States District Court, W.D. Virginia, Charlottesville Division
MEMORANDUM OPINION & ORDER
C. Hoppe United States Magistrate Judge
presiding District Judge, Chief Judge Glen E. Conrad,
referred this case to the undersigned Magistrate Judge for
the purpose of conducting a felony guilty plea hearing. After
holding a Rule 11 hearing, I recommended that Judge Conrad
accept Defendant Ahmed Thamer Darweesh Al-Ani's guilty
plea. Subsequently, Al-Ani filed two pro se motions to
withdraw his guilty plea, a result the Government opposes.
Attorneys for the Government and Al-Ani have filed briefs
addressing whether Al-Ani may withdraw his guilty plea, and
the matter is ripe for decision. Finding that Al-Ani has an
absolute right to withdraw his unaccepted guilty plea, I will
grant his motions.
October 20, 2016, the undersigned Magistrate Judge conducted
a guilty plea hearing during which Al-Ani pleaded guilty to
the offense of encouraging or inducing an illegal alien to
come to the United States, in violation of 8 U.S.C. §
1324(a)(1)(A)(iv), as alleged in Count One of the Superseding
Information. The following day, I issued a written Report and
Recommendation in which I found that Al-Ani had entered a
valid guilty plea, and I recommended that Judge Conrad accept
his guilty plea. ECF No. 36. Before Judge Conrad acted on the
Report and Recommendation, the Defendant, acting pro se,
filed two motions to withdraw his guilty plea. ECF Nos. 38,
40. On November 7, the undersigned Magistrate Judge held a
hearing on these motions. The Defendant was present with his
counsel and an interpreter, as was counsel for the
hearing began with defense counsel explaining some of
Al-Ani's concerns with his guilty plea and the basis for
his motions to withdraw his guilty plea. Counsel stated that
Al-Ani wanted to be sure that the presiding District Judge
knew the Government had agreed to dismiss the charge brought
in the Indictment, as the plea agreement stated, and he was
concerned that the presiding District Judge was not bound by
the Government's agreement to recommend that Al-Ani
receive a sentence of no more than six months'
imprisonment. Counsel also stated that Al-Ani still agreed
that the offense conduct listed in Paragraphs 3 through 5 of
the Statement of Facts, ECF No. 34, was correct.
hearing from Al-Ani's counsel, I advised the Defendant
that the decision to plead guilty or proceed to trial was his
alone to make and that before his guilty plea was accepted he
could withdraw it for any reason. I also discussed the
contents of the plea agreement, specifically the
Government's agreement to dismiss the charge in the
Indictment and to recommend a sentence of six months.
Reiterating my admonition from the previous guilty plea
hearing, I advised the Defendant that the Government's
sentencing recommendation was not binding on the presiding
District Judge. During this discussion and without prompting
from the Court, Al-Ani stated, “I am no guilty because
no take any message to Firas. This is right but because zero
to six months, I am guilty. Zero to six months, I am guilty,
but not because message.” Hearing Record
10:23:25-10:23:41. Later in the hearing, Al-Ani again stated
that he had pleaded guilty because he expected a sentence of
zero to six months, but he would not affirm that he was in
fact guilty of the charge, id. 10:55:05-10:56:08,
and he said that the facts in Paragraphs 3 through 5 of the
Statement of Facts were not true, id.
10:58:02-10:58:54. Ultimately, on advice of counsel, Al-Ani
refused to say whether he agreed or disagreed with the
Statement of Facts. Near the conclusion of the hearing, I
asked Al-Ani whether he desired to withdraw his guilty plea.
Al-Ani responded that he did “not want to withdraw
[his] guilty plea.” Id. 11:04:34-11:04:38.
Government opposes the Defendant's motion to withdraw his
guilty plea, arguing that once a guilty plea has been
accepted by the court, a defendant may withdraw it only upon
a showing of a fair and just reason. Fed. R. Crim. P.
11(d)(2)(B). As it goes, this is a correct statement of the
law, but that standard does not govern the situation
presented here. Judge Conrad referred this case to the
undersigned Magistrate Judge to conduct a Rule 11 hearing and
submit a report and recommendation “as to acceptance of
such plea.” ECF No. 25. I stayed within the scope of
the referral order and merely recommended acceptance of,
rather than actually accepted, Al-Ani's guilty plea. ECF
No. 36 at 3. Thus, this case is distinguishable from
United States v. Benton, 523 F.3d 424 (4th Cir.
2008), which the Government relies on, as the magistrate
judge in that case not only conducted the guilty plea
hearing, but also accepted the defendant's guilty plea
before he attempted to withdraw it, id. at 426-27,
Judge Conrad has not yet accepted the defendant's guilty
plea, the applicable standard provides that Al-Ani may
withdraw his plea for “any reason or no reason, ”
Fed. R. Crim. P. 11(d)(1), and he has an “absolute
right” to do so. United States v.
Mendez-Santana, 645 F.3d 822, 827 (6th Cir. 2011)
(noting agreement with United States v. Arami, 536
F.3d 479, 482- 83 (5th Cir. 2008); United States v.
Jones, 472 F.3d 905, 908 (D.C. Cir. 2007); United
States v. Head, 340 F.3d 628, 629-31 (8th Cir. 2003)).
“Rule 11(d)(1) is clear as a bell: it renders a
district court powerless to deny a plea-withdrawal motion
when the motion is made before the plea has been
accepted.” United States v. Davila-Ruiz, 790
F.3d 249, 252 (1st Cir. 2015).
purpose of the hearing on November 7 was to ascertain whether
Al-Ani intented to withdraw his plea, as he had stated in his
pro se motions. Considering Al-Ani's statement at the
hearing that he did “not want to withdraw [his] guilty
plea, ” his intent to follow through on his motions to
withdraw was not clear. Subsequent to that hearing, however,
his counsel filed a brief supporting Al-Ani's motions.
ECF No. 53. Counsel's request to allow Al-Ani to withdraw
his guilty plea is sufficient corroboration of her
client's intent. Because Al-Ani has an absolute right
withdraw his guilty plea before it has been accepted his
motions must be granted.
Conclusion and Order
the Defendant's motions to withdraw his guilty plea, ECF
Nos. 38, 40, are hereby GRANTED. Additionally, the
undersigned Magistrate Judge's Report and Recommendation,
ECF No. 36, is hereby RESCINDED.
Clerk shall set this matter for trial before the ...