                                                                            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         This order and judgment is not binding precedent except under the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

                                         -10-
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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