                                  In the

     United States Court of Appeals
                   For the Seventh Circuit
                       ____________________
No. 13-1323
UNITED STATES OF AMERICA,
                                                       Plaintiff-Appellee,

                                    v.

STACY LEE HARDEN, JR.,
                                                   Defendant-Appellant.
                       ____________________

          Appeal from the United States District Court for the
                       Southern District of Illinois.
       No. 3:11-cr-30238-DRH-1 — David R. Herndon, Chief Judge.
                       ____________________

         ARGUED APRIL 1, 2014 — DECIDED JULY 14, 2014
                       ____________________

  Before TINDER and HAMILTON, Circuit Judges, and
KAPALA, District Judge. ∗
   TINDER, Circuit Judge. Pursuant to a written plea agree-
ment, Defendant-Appellant Stacy Lee Harden pled guilty to
possession with the intent to distribute cocaine. With Hard-
en’s consent, the district court instructed a magistrate judge

∗ Of the United States District Court for the Northern District of Illinois,
sitting by designation.
2                                                  No. 13-1323

to conduct a Federal Rule of Criminal Procedure 11 plea col-
loquy under a local rule allowing for magistrate judges to
accept felony guilty pleas. The magistrate judge accepted
Harden’s guilty plea, and the district court then conducted a
sentencing hearing and imposed sentence. Harden now ap-
peals the magistrate judge’s acceptance of his guilty plea,
arguing that the magistrate judge’s acceptance of a felony
guilty plea, instead of preparing a report and recommenda-
tion to the district court, was a violation of the Federal Mag-
istrates Act, 28 U.S.C. § 636; Rule 59 of the Federal Rules of
Criminal Procedure; and the United States Constitution.
                               I
    Harden was indicted and charged with possession with
the intent to distribute at least 5 kilograms of cocaine. At his
arraignment, he pled not guilty, but he later changed his
plea in accordance with a written plea agreement that, inter
alia, specified that Harden was waiving his rights of appeal
and collateral attack, except as to the reasonableness of his
sentence should the district judge exceed the guidelines
range. Harden, his counsel, and the prosecutor also signed a
Notice Regarding Entry of Plea of Guilty, consenting to the
magistrate judge conducting the Rule 11 proceedings and
accepting the guilty plea.
   The plea colloquy was conducted by a magistrate judge,
pursuant to Local Rule 72.1(b) of the United States District
Court for the Southern District of Illinois, which provides
that “[w]ith the consent of the parties, a magistrate judge is
authorized to: (1) conduct voir dire and select petit juries for
the District Court; (2) accept guilty pleas in felony cases, or-
der presentence investigation reports, and file reports and
recommendations with the District Court.” Prior to the col-
No. 13-1323                                                 3

loquy, the magistrate judge asked if the parties consented to
him taking the guilty plea, and both parties answered af-
firmatively. Specifically, the magistrate judge asked Harden,
“You understand that by signing this waiver and consent, if
I accept your plea today you don’t have any right to later
come back and complain that your plea wasn’t taken by [the
district court judge]?” Harden answered, “Yes, sir.” No par-
ty contends that the content of the rest of the colloquy was
defective.
    After Harden admitted his guilt, the magistrate judge
stated that “I will accept your plea. However, pursuant to
Section 6B1.1(c) of the guidelines, [the district court judge]
will defer any decision to accept or reject the Plea Agreement
between you and the government until after he has had an
opportunity to consider the presentence report.” After the
completion of the presentence report, the district court con-
ducted a sentencing hearing and made several findings ad-
verse to Harden, then imposed a sentence within the guide-
lines range. The Defendant-Appellant filed a timely appeal,
attacking the validity of the magistrate judge’s acceptance of
the guilty plea.
                              II
   The Federal Magistrates Act, 28 U.S.C. § 636 (“FMA” or
“Magistrates Act”), defines the scope of the duties that Unit-
ed States magistrate judges are permitted to undertake. The
FMA lists three types of duties for magistrate judges. They
may undertake certain enumerated tasks without the parties’
consent, such as enter a sentence for a petty offense, or hear
and determine certain pretrial matters pending before the
court. 28 U.S.C. § 636(a)(4), (b)(1)(A). They are permitted to
perform other enumerated duties, such as presiding over
4                                                   No. 13-1323

misdemeanor trials, only with the litigants’ consent. 28
U.S.C. § 636(a)(3); 18 U.S.C. § 3401(b). And they are permit-
ted to undertake “such additional duties as are not incon-
sistent with the Constitution and laws of the United States.”
28 U.S.C. § 636(b)(3).
    The Supreme Court has explained that whether a duty
not listed in the statute qualifies as a permissible additional
duty depends on whether the duty is “comparable” to those
that are actually listed in the Act. Peretz v. United States, 501
U.S. 923, 931–933 (1991). If an unlisted duty is comparable to
those duties listed in the Act, that duty may be performed by
the magistrate judge with the parties’ consent. Id. at 933. The
basis for comparison is “responsibility and importance”: in
Peretz, the Court concluded that a magistrate judge may
oversee jury selection in a felony case with the parties’ con-
sent, because “with the parties’ consent, a district judge may
delegate to a magistrate supervision of entire civil and mis-
demeanor trials,” and “[t]hese duties are comparable in re-
sponsibility and importance to presiding over voir dire at tri-
al.” Id.
    The acceptance of a guilty plea in a felony case is not a
described power or duty, so we must interpret the “addi-
tional duties” clause of the statute to determine whether the
Act permits magistrate judges to discharge that function,
even with the consent of the defendant and the government.
Based on the statute and the Supreme Court decisions limn-
ing the limits of federal magistrates’ authority, we determine
that magistrates are not permitted to accept guilty pleas in
felony cases and adjudge a defendant guilty. The task of ac-
cepting a guilty plea is a task too important to be considered
a mere “additional duty” permitted under § 636(b)(3): it is
No. 13-1323                                                   5

more important than the supervision of a civil or misde-
meanor trial, or presiding over voir dire. Because of this im-
portance, the additional duties clause cannot be stretched to
reach acceptance of felony guilty pleas, even with a defend-
ant’s consent.
    “[A] guilty plea is a waiver of important constitutional
rights designed to protect the fairness of a trial.” Johnson v.
Ohio, 419 U.S. 924, 925 (1974). It is “more than an admission
of past conduct: it is the defendant’s consent that judgment
of conviction may be entered without a trial—a waiver of his
right to trial before a jury or judge.” Brady v. United States,
397 U.S. 742, 748 (1970). In addition to waiving these core
rights and protections afforded by our system of criminal
justice, defendants often waive their appellate and habeas
corpus rights as well. In such cases, accepting a guilty plea is
even more final than a guilty verdict. Consequently, when a
judge accepts a guilty plea, the judge is required to conduct
a long, searching colloquy, as required by Federal Rule of
Criminal Procedure 11(b), to ensure that the defendant’s
waivers of his important rights are “voluntary … knowing,
intelligent acts done with sufficient awareness of the rele-
vant circumstances and likely consequences.” Brady, 397 U.S.
at 748. Among the determinations to be made are
   -   whether the defendant is competent;
   -   whether the defendant is making a voluntary choice
       to plead guilty;
   -   whether the defendant understands the charges and
       penalties he faces;
   -   whether the defendant understands the many consti-
       tutional rights he relinquishes;
6                                                   No. 13-1323

    -   whether the defendant understands the terms of any
        plea agreement;
    -   and whether there is a legal and factual basis for the
        guilty plea, and thus good reason to believe the de-
        fendant actually committed a charged crime.
   The answers to these questions are critical to ensuring
that a guilty plea is valid. If the judge cannot answer all of
these questions in the affirmative, the guilty plea cannot be
accepted. Any district judge who has been on the bench
more than a few years will have experienced plea colloquies
in which the answers were not all yes. The questions are not
hard to ask, but their answers are weighted with importance.
    Once a defendant’s guilty plea is accepted, the prosecu-
tion is at the same stage as if a jury had just returned a ver-
dict of guilty after a trial. Unlike the preliminary nature of
voir dire—which is an important, but preliminary, juncture
that will be followed by numerous other substantive oppor-
tunities to contest the government’s evidence, case, and con-
duct before any determination of guilt—the acceptance of a
guilty plea is dispositive. It results in a final and consequen-
tial shift in the defendant’s status. For this reason, the ac-
ceptance of the guilty plea is quite similar in importance to
the conducting of a felony trial. And it is clear that a magis-
trate judge is not permitted to conduct a felony trial, even
with the consent of the parties. The Supreme Court so rea-
soned using a canon of statutory interpretation that gives
significance to the careful contours of the authority granted
to magistrates in the Magistrates Act: Expressio unius est ex-
clusio alterius. Gomez v. United States, 490 U.S. 858, 872 (1989)
(“[T]he carefully defined grant of authority to conduct trials
of civil matters and of minor criminal cases should be con-
No. 13-1323                                                     7

strued as an implicit withholding of the authority to preside
at a felony trial.”).
    That same limiting principle leads us to our conclusion
that the acceptance of a guilty plea in a felony case, a task no
less important, is also not authorized by the statute. In ac-
cepting Harden’s guilty plea, even with his consent, the
magistrate judge violated the Federal Magistrates Act.
                               III
    The government correctly notes that Harden did not ob-
ject to the magistrate’s acceptance of his guilty plea before
the district court. In fact, Harden affirmatively consented to
the magistrate judge’s acceptance of the plea, in his written
plea agreement, and in person at the plea colloquy. The gov-
ernment argues that based on these facts, Harden waived his
objection to the magistrate’s acceptance of the plea. See Unit-
ed States v. Knox, 540 F.3d 708, 713 (7th Cir. 2008) (“Conven-
tionally, a waiver is a knowing and intentional relinquish-
ment of a right, while forfeiture is the result of unintentional
relinquishment. Waiver precludes review, whereas forfeiture
permits review for plain error.”) (citations omitted). Even if
we consider Harden’s actions to constitute forfeiture rather
than waiver, the government argues that Harden is not enti-
tled to relief because he cannot point to any prejudice that
resulted from the magistrate’s acceptance of the guilty plea.
   However, neither Harden’s consent nor the lack of harm
to him is dispositive in this case. “As a general matter, of
course, a litigant must raise all issues and objections at trial,”
but this requirement is not “absolute.” Peretz, 501 U.S. at 953
(Scalia, J., dissenting). A pertinent example is Peretz itself,
where the Court undertook a substantive review of the stat-
8                                                    No. 13-1323

ute despite the fact that the defendant had consented to have
a magistrate judge conduct the jury selection for his felony
trial. 501 U.S. at 932–36. The majority ultimately concluded
that § 636(b) permits this practice, but the Court did not
sidestep review.
    Moreover, the Supreme Court teaches that when a feder-
al judge or tribunal performs an act of consequence that
Congress has not authorized, reversal on appeal may be ap-
propriate even if the defendant has waived the issue or oth-
erwise consented, even if the judge has done a superb job on
the merits and even if the defendant cannot show prejudice
or harm. See Rivera v. Illinois, 556 U.S. 148, 161 (2009) (identi-
fying as a category of cases that merit “automatic reversal”
cases “in which federal judges or tribunals lacked statutory
authority to adjudicate the controversy”). For example, in
Nguyen v. United States, 539 U.S. 69 (2003), an Article IV terri-
torial judge sat by designation on a Ninth Circuit panel that
affirmed a number of criminal convictions on appeal. The
defendant in that case did not object to the presence of the
Article IV judge during the proceedings before the Ninth
Circuit, but thereafter sought the Supreme Court’s review
regarding whether the judgment was invalid because of the
composition of the panel. 539 U.S. at 73. The Supreme Court
vacated the appellate judgments and remanded to the Ninth
Circuit. The fact that “the defect was not raised in a timely
manner” did not stop the court from reviewing the potential
statutory violation, because the statutory provision in ques-
tion “embodies a strong policy concerning the proper ad-
ministration of judicial business.” Id. at 78 (citing Glidden Co.
v. Zdanok, 370 U.S. 530, 536 (1962)). The Court even contem-
plated situations in which explicit consent was given, like in
Harden’s case, and stated that that reversal would have been
No. 13-1323                                                    9

proper “[e]ven if the parties had expressly stipulated to the
participation of a non-Article III judge in the consideration
of their appeals, no matter how distinguished and well qual-
ified the judge might be.” Id. at 80–81. Similarly, in Wingo v.
Wedding, 418 U.S. 461 (1974), a case concerning the authority
of magistrate judges, the Court affirmed the Sixth Circuit’s
decision to reverse the district court’s judgment because a
magistrate judge had conducted an evidentiary hearing in a
habeas case, and the version of the Magistrates Act then in
effect did not allow that. (The current version does.) The
Court reached its conclusion in Wingo without considering
whether the defendant was harmed.
    This narrow exception to waiver and forfeiture is neces-
sary for the review of judicial authority to act with consent.
As Justice Scalia observed in his dissent in Peretz, “[b]y defi-
nition, these claims can be advanced only by a litigant who
will, if ordinary rules are applied, be deemed to have forfeit-
ed them: A defendant who objects will not be assigned to the
magistrate at all. Thus, if we invariably dismissed claims of
this nature on the ground of forfeiture, district courts would
never know whether the Act authorizes them, with the de-
fendant’s consent, to refer [an additional duty] to a magis-
trate.” Peretz, 501 U.S. at 954–55 (Scalia, J., dissenting). This
part of the dissent is in accord with the majority in Peretz.
    Because we find that the magistrate judge’s acceptance of
Harden’s guilty plea violated the Federal Magistrates Act,
we reverse. Although Harden has not shown that he suf-
fered prejudice from the role the magistrate judge played in
this case, and although nothing has been suggested to criti-
cize the magistrate judge’s performance, the statute simply
does not authorize a magistrate judge to accept a felony
10                                                            No. 13-1323

guilty plea. We need not reach Harden’s constitutional
claim, alleging that a magistrate judge’s acceptance of a felo-
ny guilty plea violates the structural guarantees of Article III,
because the statutory violation is clear. See Nguyen, 539 U.S.
at 76 n.9 (2003).
                                    IV
    We note that our reasoning places us in conflict with sev-
eral of our sister circuits. 1 There is widespread agreement
that a magistrate judge may conduct a Rule 11(b) colloquy
for the purpose of making a report and recommendation.
See, e.g., United States v. Reyna-Tapia, 328 F.3d 1114, 1119–22
(9th Cir. 2003) (en banc); United States v. Torres, 258 F.3d 791,
796 (8th Cir. 2001); United States v. Dees, 125 F.3d 261, 263,
265 (5th Cir. 1997); United States v. Williams, 23 F.3d 629, 631–
34 (2d Cir. 1994). We agree that this is a permissible practice
(and are told that that the district court for the Southern Dis-
trict of Illinois now delegates the conduct of a plea colloquy
to a magistrate judge only when a report and recommenda-
tion on the plea is sent back to the district judge). Several cir-
cuits go further and authorize magistrate judges to accept
felony guilty pleas with the parties’ consent. See United States
v. Benton, 523 F.3d 424, 431–32 (4th Cir. 2008); United States v.
Woodard, 387 F.3d 1329, 1332–33 (11th Cir. 2004); United
States v. Ciapponi, 77 F.3d 1247, 1250–52 (10th Cir. 1996).
Those courts place great import on the statement in Peretz
that “Congress intended to give federal judges significant



1Because this opinion creates a split among circuits, we circulated it in
advance of publication to all judges of this court in regular active service,
pursuant to Circuit Rule 40(e). None voted to hear the case en banc.
No. 13-1323                                                    11

leeway to experiment with possible improvements in the ef-
ficiency of the judicial process… .” 501 U.S. at 932.
    The desire to make more efficient the district courts’
management of large criminal caseloads is understandable.
These days, over 97% of criminal convictions are the result of
guilty pleas. See “Statistical Tables for the Federal Judici-
ary,”     Table     D-4      (June    2013),      available     at
http://www.uscourts.gov/uscourts/Statistics/StatisticalTables
ForTheFederalJudiciary/2013/june/D04Jun13.pdf (visited Ju-
ly 14, 2014) (finding that of 84,060 total criminal convictions
in a twelve-month period, 81,955 were the result of guilty
pleas). Truly, “criminal justice today is for the most part a
system of pleas, not a system of trials.” Lafler v. Cooper, 132 S.
Ct. 1376, 1388 (2012). Yet, the prevalence of guilty pleas does
not render them less important, or the protections waived
through them any less fundamental. A felony guilty plea is
equal in importance to a felony trial leading to a verdict of
guilty. And without explicit authorization from Congress,
the district court cannot delegate this vital task. The authori-
ty to experiment set forth in Peretz is bounded; the Court has
never suggested that magistrate judges, with the parties’
consent, may perform every duty of an Article III judge, re-
gardless of the duty’s importance.
   The judgment of the district court is REVERSED.
