                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1692
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                Jeremiah Wroblewski

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                  for the Northern District of Iowa - Cedar Rapids
                                   ____________

                            Submitted: February 10, 2016
                               Filed: March 15, 2016
                                   ____________

Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

        Jeremiah Wroblewski pled guilty to violating 18 U.S.C. § 3146(a)(1) based on
his failure to appear at a supervised release revocation hearing. We conclude that the
district court plainly erred by accepting Wroblewski’s plea without establishing an
adequate factual basis for the plea. We therefore vacate the conviction and sentence.
                                          I.

        In October 2005, Wroblewski was sentenced to 8 years in prison and 3 years
of supervised release for possessing a firearm and ammunition after he had been
convicted of misdemeanor crimes of domestic violence. See United States v.
Wroblewski, No. 05-cr-2002 (N.D. Iowa Oct. 26, 2005). In June 2012, he started his
first term of supervised release, but in December 2012, the district court revoked his
release, sentencing him to 12 months in prison and 24 months of supervised release.
In November 2013, Wroblewski began his second term of supervised release, but in
May 2014, his probation officer petitioned to again revoke his release. The district
court scheduled a June 3, 2014 hearing on the petition, and Wroblewski was served
a summons to appear at the revocation hearing. Wroblewski did not appear and was
arrested two days later. The court thereafter revoked his supervised release and
sentenced him to 14 months in prison with no additional supervised release.

       In this action, an August 2014 one-count indictment charged Wroblewski with
failure to appear for the June 3 revocation hearing, in violation of section 3146(a)(1)
(whoever, after being released under 18 U.S.C. Chapter 207, knowingly fails to
appear before court as required by conditions of release, commits criminal offense).
Wroblewski pled guilty, and the district court sentenced him to 21 months in prison,
to be served consecutively to his 14-month revocation sentence, followed by 3 years
of supervised release.

                                          II.

       Wroblewski argues on appeal that he had not been released under Chapter 207,
and thus could not have violated section 3146(a)(1) by failing to appear at his
revocation hearing pursuant to the summons. If, during a defendant’s term of
supervised release, there is probable cause to believe he has violated a condition of
his release, the probation officer may initiate a warrantless arrest. See 18 U.S.C.

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§ 3606. Alternatively, the district court may issue a warrant for his arrest or a
summons directing him to appear at an initial hearing. Federal Rule of Criminal
Procedure 32.1 provides that a defendant may appear at the initial hearing pursuant
to a summons or, if he is held in custody for an alleged supervised release violation,
he must be taken before the court for an initial appearance. See Fed. R. Crim. P.
32.1(a)(1)-(2). At the initial appearance, the district court may release or detain the
defendant under 18 U.S.C. § 3143(a)(1), a provision of the Bail Reform Act found in
Chapter 207, pending further proceedings. See Fed. R. Crim. P. 32.1(a)(6); Fed. R.
Crim. P. 46(d) (Rule 32.1(a)(6) governs release from custody pending hearing on
violation of supervised release); see also 18 U.S.C. § 3141 et seq.

                                         III.

       The government argues that Wroblewski’s receipt of the summons effectively
released him under Chapter 207, and cites to cases in which defendants have been
convicted under section 3146(a)(1) based on their failure to appear at supervised
release revocation hearings. In each of the cited cases, however, the defendant had
previously appeared before the court, either after an arrest or pursuant to a summons,
and had thereafter been permitted to leave on his own recognizance. See United
States v. Woodard, No. 4:10-CR-3083, 2011 WL 1790818, at *1-2 (D. Neb. Apr. 19,
2011) (unpublished order) (district court released defendant at conclusion of initial
appearance, pending supervised release revocation hearing, and at close of revocation
hearing, pending sentencing on violations; defendant’s continued release was
governed by Bail Reform Act even though district judge did not specifically state
authority under which he was released); United States v. Williard, 726 F. Supp. 590,
591-95 (E.D. Pa. 1989) (release after sentencing to voluntarily report for service of
revocation sentence); United States v. Garner, 478 F. Supp. 1, 2-4 (W.D. Tenn. 1978)
(district court found defendant guilty of probation violation, revoked his probation,
imposed prison term, and granted leave for defendant to self-report for service of
sentence; rejecting defendant’s argument that he could not have been released under

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Bail Reform Act because his initial appearance was pursuant to summons rather than
warrant; defendant who is summonsed to appear and who appears in presence of
court, clerk, and marshal is at that time sufficiently in custody to activate Chapter 207
release provisions); cf. United States v. Prescott, No. 2:01-cr-129 (D. Vt. Apr. 11,
2008) (finding that defendant violated condition of supervised release by failing to
appear at final revocation hearing after he had appeared at initial hearing and district
court had released him pending further proceedings), aff’d, 360 F. App’x 209 (2d Cir.
2010) (unpublished order).

       We conclude that a defendant who has merely been served with a summons,
but who has not yet appeared in court pursuant to that summons, has not been
“released under” Chapter 207. Wroblewski had been served a summons, but had not
yet appeared in court pursuant to that summons. He therefore had not been released
under Chapter 207 when he failed to appear at his supervised release revocation
hearing, and could not have violated section 3146(a)(1). See United States v.
Bodiford, 753 F.2d 380, 381-82 (5th Cir. 1985) (defendant who had not appeared
before judicial officer could not have been “released” under Bail Reform Act;
“[r]elease” within meaning of Bail Reform Act is essential element of offense of bail-
jumping under Bail Reform Act).

                                          IV.

       Before a district court enters judgment on a defendant’s guilty plea, it must
determine that there is an adequate factual basis for the plea. See Fed. R. Crim. P.
11(b)(3). The record must contain sufficient evidence upon which the district court
may reasonably determine that the defendant likely committed the offense. See
United States v. Frook, 616 F.3d 773, 776 (8th Cir. 2010). If a district court accepts
a guilty plea based on a set of facts that plainly and obviously does not constitute a
federal offense, but nonetheless determines pursuant to Rule 11(b)(3) that the
defendant’s conduct constituted such an offense, there has been a violation of Rule

                                          -4-
11’s scheme to assure knowing and voluntary pleas. Id. at 775. Where a defendant
does not object to a Rule 11(b)(3) violation in the district court, we review only for
plain error. Id. at 776.

       To obtain relief on plain-error review, a defendant must show that the district
court committed an error that was plain and that affected his substantial rights. Id.
(under plain-error review, defendant must show that district court committed error,
that error was obvious, and that error affected his substantial rights). A defendant
satisfies the substantial-rights prong of the plain-error inquiry by demonstrating that,
but for the Rule 11 violation, he would not have entered his plea. Id. Where a
defendant meets these criteria, this court should correct the error if the error
“seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Id. The district court’s error was plain: Wroblewski had not been released under
Chapter 207, an essential element of the crime to which he entered his plea. The error
affected Wroblewski’s substantial rights because there is a reasonable probability that
he would not have pled guilty had he known there was no factual basis for the plea.
The record shows that Wroblewski’s conduct did not, as a matter of law, meet all of
the elements of the crime to which he pled guilty, a fact that necessarily and seriously
affects the fairness, integrity, and public reputation of the district court proceedings.
See United States v. Olano, 507 U.S. 725, 735-37 (1993) (“The court of appeals
should no doubt correct a plain forfeited error that causes the conviction or
sentencing of an actually innocent defendant.”). We thus exercise our discretion to
correct the error.

          Accordingly, we vacate Wroblewski’s conviction and sentence.
                      ______________________________




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