United States v. Qualls ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
July 12, 2018
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 17-2046
(D.C. No. 5:14-CR-03519-RB-1)
JIM WALTER QUALLS, JR., (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, MORITZ, and EID, Circuit Judges.
Jim Walter Qualls, Jr. pleaded guilty to producing child pornography. Yet
after a magistrate judge accepted the plea, Qualls had a change of heart and
moved to withdraw his plea. The district court denied the motion. Qualls
appealed, arguing the district court erred for two reasons. He first contends the
district court should have allowed him to withdraw his plea for any reason
because he moved to withdraw the plea before it had been formally accepted. If
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
the plea had been accepted, Qualls argues the district court should have permitted
him to withdraw it because he did not knowingly and voluntarily plead guilty.
We affirm. Qualls could not withdraw his plea for any reason because the
magistrate judge accepted the plea before Qualls moved to withdraw it. And it is
well settled in this circuit that magistrate judges have the authority to conduct
plea hearings and enter pleas in felony cases. Further, the district court did not
abuse its discretion when it concluded Qualls entered his plea knowingly and
voluntarily.
I. Background
Acting on a tip, Department of Homeland Security agents went to Qualls’s
residence to execute a federal search warrant relating to a child pornography
investigation. During the incident, Qualls waived his Miranda rights and admitted
to taking nude photographs of his then three-year-old daughter, uploading these
pictures to the Internet, and emailing with others to trade images of his daughter
for images of other children engaged in sexual conduct.
A grand jury indicted Qualls on four counts of production of child
pornography. With Qualls’s criminal history, he faced between 25 and 50 years
of imprisonment on each count, and the sentences could run consecutively.
Qualls agreed to plead guilty. He then appeared for a hearing in front of a
magistrate judge and signed a consent form to waive his right to have his guilty
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plea taken by a United States District Court judge. During the hearing, the
magistrate judge confirmed that Qualls had discussed the form with his attorney
and voluntarily signed it. The discussion then moved to the length of Qualls’s
potential sentence. The government explained there was a disagreement. The
government contended the maximum sentence for each count was 50 years’
imprisonment due to Qualls’s past conviction for enticement of a child. In
contrast, the defense posited the sentence would carry a maximum of 30 years per
count. After confirming he understood the consequences of sentencing and the
possibility the government’s position was correct, Qualls pleaded guilty to all
four counts.
Later, however, Qualls filed a pro se motion to withdraw the guilty plea
after his counsel withdrew due to a conflict of interest. With the help of new
counsel, Qualls filed an amended motion that argued he could withdraw his guilty
plea for two reasons. He based his first argument on Federal Rule of Criminal
Procedure 11(d)(1), which allows defendants to withdraw guilty pleas for any
reason before they are accepted. In Qualls’s view, only district courts have the
authority to accept guilty pleas; federal magistrate judges, he contended, lack this
power. Accordingly, since his plea had only been accepted by a magistrate judge,
Qualls argued the plea had never been formally accepted, and he could
consequently withdraw it for any reason. If his plea had been accepted, Qualls
contended Federal Rule of Criminal Procedure Rule 11(d)(2)(B) allowed him to
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withdraw the plea because he had a “fair and just reason” for doing so—namely,
that he would move to suppress his post-arrest statements to law enforcement if
the plea were withdrawn.
The district court denied the motion because, in its view, the magistrate
judge possessed the authority to accept Qualls’s plea, and Qualls had not shown a
fair and just reason for withdrawal. The court then sentenced Qualls to four
consecutive sentences of 50 years, for a total of 200 years imprisonment.
II. Analysis
Qualls contends the district court erred in denying his motion to withdraw
his guilty plea. He first argues he could withdraw the plea for any reason because
the magistrate judge lacked the power to formally accept it. Qualls also argues he
demonstrated a fair and just reason to withdraw the plea.
A. Qualls Could Not Withdraw His Plea For Any Reason
“[B]efore the court accepts” a defendant’s guilty plea, the defendant can
withdraw it “for any reason or no reason.” Fed. R. Crim. P. 11(d)(1). But “after
the court accepts the plea,” a defendant can only withdraw it if he “can show a
fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).
Qualls contends the district court should have allowed him to withdraw his
guilty plea for any reason because the court had not yet accepted the plea when he
moved to withdraw it. But the record reveals that before Qualls moved to the
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withdraw his plea, the magistrate judge had accepted it. App. 78–79 (“I hereby
accept your pleas of guilt and I now adjudge you guilty of each of the crimes in
your indictment.”). Thus, Qualls could only withdraw his guilty plea if he could
demonstrate a fair and just reason for doing so.
Yet Qualls insists the magistrate judge did not—and indeed could
not—have accepted his plea because the magistrate lacked the authority to do so.
At bottom, Qualls contends only United States District Court judges possess the
power to formally accept guilty pleas. Our precedent, however, squarely
forecloses this argument. We have held that “with a defendant’s express consent,
the broad residuary ‘additional duties’ clause of the Magistrates Act authorizes a
magistrate judge to conduct a Rule 11 felony plea proceeding, and such does not
violate the defendant’s constitutional rights.” United States v. Salas-Garcia, 698
F.3d 1242, 1253 (10th Cir. 2012) (emphasis added) (quoting United States v.
Ciapponi, 77 F.3d 1247, 1251 (10th Cir. 1996)). Thus, “[m]agistrate judges have
the authority to conduct plea hearings and accept guilty pleas.” Id. In so
concluding, we recognized that Congress authorized these duties by magistrate
judges, but to the extent any constitutional ambiguity remained, “the consent
requirement—fulfilled in this case—saves the delegation” from doubt. United
States v. Williams, 23 F.3d 629, 633 (2d Cir. 1994) (relied on by Ciapponi);
accord United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); United
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States v. Torres, 258 F.3d 791, 796 (8th Cir. 2001); United States v. Dees, 125
F.3d 261, 267 (5th Cir. 1997). 1
Despite this, Qualls points us to two cases that, in his view, demonstrate a
magistrate judge lacks authority to accept a guilty plea: United States v. Arami,
536 F.3d 479 (5th Cir. 2008), and United States v. Davila-Ruiz, 790 F.3d 249 (1st
Cir. 2015). Neither case, however, stands for this proposition. In both cases, the
magistrate judges only recommended that the district court accept the defendants’
pleas—and the defendants moved to withdraw their guilty pleas before the district
court had formally adopted the magistrate judges’ recommendations. Davilla-
Ruiz, 790 F.3d at 250; Arami, 536 F.3d at 481. Accordingly, both courts allowed
the defendants to withdraw their pleas because the pleas had not, in fact, been
accepted by either a magistrate judge or a district court judge. Davilla-Ruiz, 790
F.3d at 250; Arami, 536 F.3d at 482–83. These cases thus involved a
straightforward application of Rule 11(d)(1): when a magistrate judge only
recommends the district court accept a plea but does not actually accept it, the
defendant can withdraw the plea anytime before the district court formally accepts
it.
1
We realize Qualls believes “Salas-Garcia is an erroneous application of
Rule 11(d)(1).” Aplt. Br. at 30. But “[w]e are bound by the precedent of prior
panels absent en banc reconsideration or a superseding contrary decision by the
Supreme Court.” United States v. Nichols, 169 F.3d 1255, 1261 (10th Cir. 1999)
(quoting In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)).
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But here, in stark contrast to Davilla-Ruiz and Arami, the magistrate judge
formally accepted the guilty plea, rather than merely recommending its
acceptance. App. 78–79 (“I hereby accept your pleas of guilt and I now adjudge
you guilty of each of the crimes in your indictment.”). Thus, Davilla-Ruiz and
Arami are not factually on point. And more fundamentally, neither case suggests
magistrates lack the authority to accept guilty pleas.
Thus, the district court properly held that Qualls could not withdraw his
guilty plea for any reason pursuant to Rule 11(d)(1) because the magistrate judge
had formally accepted the plea.
B. Qualls Knowingly and Voluntarily Pleaded Guilty
Qualls next argues he did not knowingly and voluntarily plead guilty
because he received no benefit or consideration in exchange for his plea.
1. Forfeiture and Waiver
As an initial matter, Qualls forfeited this argument because he did not raise
it before the district court. He then waived the argument by not arguing for plain
error review on appeal.
Defendants forfeit arguments they fail to raise before the district court. See
Richison v. Ernest Group, Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011)
(explaining that if a “theory simply wasn’t raised before the district court, we
usually hold it forfeited”). We can consider forfeited arguments on appeal, but
only under the plain error standard of review. Id. Crucially, though, if a
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defendant “fail[s] to argue for plain error and its application on appeal,” he
waives the argument before this court. See id. at 1331; McKissick v. Yuen, 618
F.3d 1177, 1189 (10th Cir. 2010) (concluding that if a defendant forfeits an
argument and then fails to “explain in her opening appellate brief . . . how they
survive the plain error standard,” this “waives the argument[] in this court”).
Applying this standard here, Qualls’s sole argument before the district
court was that he wanted to contest “the statement that was provided implicating
him in the instant offense.” App. 17. He never referenced the voluntary or
willing nature of his plea. Qualls therefore forfeited any challenge to his plea on
that basis. And when Qualls raised this argument for the first time on appeal, he
waived it because his briefing made no mention of the plain error standard of
review.
2. Merits
Even if Qualls had not forfeited the argument, we would still conclude the
district court did not abuse its discretion in denying the motion to withdraw.
When, as here, the court accepted the defendant’s plea, the defendant can
only withdraw the plea if he can “show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). To evaluate whether the defendant
has satisfied this burden, we examine a number of non-exclusive factors—often
called the “Gordon factors”:
(1) whether the defendant asserted his innocence,
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(2) whether the plea was knowing and voluntary,
(3) whether defendant was assisted by counsel,
(4) whether the defendant delayed filing his motion and,
if so, why,
(5) whether withdrawal would prejudice the government,
(6) whether withdrawal would substantially inconvenience the
court, and
(7) whether withdrawal would waste judicial resources.
United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993); see United States v.
Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007). More recent cases also instruct
us to consider an eighth factor of whether the government would be likely to
convict the defendant at trial. United States v. Sanchez-Leon, 764 F.3d 1248,
1258 (10th Cir. 2014). We “review the district court’s application of the Gordon
factors for abuse of discretion, with the exception of two factors which we review
de novo: whether the plea was knowing and voluntary and, if reviewable on direct
appeal, whether counsel provided effective assistance.” United States v.
Marceleno, 819 F.3d 1267, 1272 (10th Cir. 2016).
The district court found that Qualls was not entitled to withdraw his plea
based on any of the first three factors. These factors are the most important in
our evaluation and are frequently dispositive. See United States v. Byrum, 567
F.3d 1255, 1265 (10th Cir. 2009) (“[A] court need not address the prejudice to the
government, the timing of the defendant’s motion, the inconvenience to the court,
or the waste of judicial resources factors ‘unless the defendant establishes a fair
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and just reason for withdrawing his guilty plea’ in the first instance.” (quoting
Hamilton, 510 F.3d at 1217)).
Qualls contests only the second factor: he argues he did not plead guilty
knowingly and voluntarily. In making this argument, he relies on general
principles of contract law. He contends he received no consideration in exchange
for his offer to plead guilty, such as a reduced sentence. This lack of
consideration, he claims, proves he “did not knowingly and voluntarily enter the
plea.” Aplt. Br. at 12.
Qualls is right that if defendants enter plea agreements with the
government, some circuits apply ordinary contract interpretation principles and
require consideration. See United States v. Brunetti, 376 F.3d 93, 95 (2d Cir.
2004) (per curiam) (“[A] guilty plea can be challenged for contractual invalidity,
including invalidity based on a lack of consideration.” (citing United States v.
Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994))). Critically, though, in these
cases courts employ contract interpretation principles to analyze plea agreements
with the government. And here, Qualls did not enter a plea agreement with the
government. Thus, consideration could not have been required because there was
no “contract” between Qualls and the government—Qualls simply pleaded guilty.
He also claims he did not plead knowingly and voluntarily because “[e]ven
with the assistance of counsel, [he] did not understand that he was looking at a
life sentence as a consequence of his plea . . . .” Aplt. Br. at 16. But the
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magistrate judge specifically asked Qualls whether he fully understood that he
could be sentenced to “200 years” in prison and would definitely face at least “15
years” of imprisonment on each of the four counts—the mandatory minimum.
App. 71. Qualls affirmatively responded to the court’s inquiry, confirming he
understood he could be facing an effective life sentence.
Finally, Qualls points to United States v. Romero, 360 F.3d 1248 (10th Cir.
2004), and United States v. Fard, 775 F.3d 939 (7th Cir. 2015), claiming these
cases generally support his right to withdraw under Rule 11(d)(2)(B) for “a fair
and just reason.” But neither case involved remotely similar facts.
In Romero, the defendant was mistakenly indicted after the government
promised not to prosecute him in federal court in exchange for his cooperation.
We held the district court is required to uphold and enforce the agreements
between the defendant and the government. Romero, 360 F.3d at 1253–54. That
case bears no resemblance to the facts here, however, because Qualls possessed
no plea agreement with the government.
Fard, a Seventh Circuit decision, is equally inapplicable. There, the court
held the defendant did not knowingly and voluntarily plead guilty because he did
not know or understand the elements of the crime he pleaded guilty to. Fard, 775
F.3d at 943–44. But Qualls does not claim he did not understand the elements of
the crimes listed in his guilty plea. He instead claims he did not understand the
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consequences of his plea—that he was receiving an effective life sentence with no
consideration in exchange. Thus, Fard is inapplicable.
In sum, the district court did not abuse its discretion when it concluded
Qualls did not proffer a “fair and just reason” for withdrawing his guilty plea.
III. Conclusion
We therefore AFFIRM the district court’s denial of Qualls’s motion to
withdraw his guilty plea.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Chief Judge
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