                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3430
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of Nebraska.
Jeffrey D. Welker,                      *
                                        *         [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: May 14, 2004
                                Filed: July 27, 2004
                                 ___________

Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
                         ___________

PER CURIAM.

      Jeffrey Welker appeals to this court, challenging his criminal sentence imposed
by the district court below as too severe. His counsel filed a brief and moved to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).

       Mr. Welker was indicted for conspiracy to distribute and possess with intent
to distribute 500 grams or more of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. § 846. With the assistance of counsel,
Mr. Welker agreed to plead guilty to the indictment. At the close of the plea hearing,
the district court deferred its decision whether to accept Mr. Welker’s plea until the
sentencing hearing. At the sentencing hearing, Mr. Welker moved to withdraw his
guilty plea, alleging that he had been misled by his attorney as to what sentence he
would receive. The court denied the motion and sentenced Mr. Welker to the
statutory minimum of 120 months imprisonment, and 5 years supervised release.

       After independent review under Penson v. Ohio, 488 U.S. 75 (1988), this court
requested briefing on the issue whether Mr. Welker should have been allowed to
withdraw his plea in light of Federal Rule of Criminal Procedure 11(d)(1), which
allows a defendant to withdraw his guilty plea for any reason before the court accepts
the plea. The government conceded error on this issue, recognizing that the district
court should have permitted Mr. Welker to withdraw his guilty plea. Given the
government’s concession and the plain meaning of the applicable rule, the district
court’s judgment is reversed and the case is remanded for further proceedings. See
Fed. R. Crim. P. 11(d)(1); United States v. Head, 340 F.3d 628, 629-30 (8th Cir.
2003) (district court had no discretion to deny defendant’s motion to withdraw guilty
plea where plea had not yet been accepted). Mr. Welker may withdraw his guilty plea
if he so chooses.
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