In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1157

United States of America,

Plaintiff-Appellee,

v.

Shukri Shaker,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:99 cr 168-1--Rudy Lozano, Judge.

Argued August 8, 2001--Decided January 29, 2002



  Before Ripple, Manion, and Rovner, Circuit
Judges.

  Per Curiam. Shukri Shaker pleaded guilty
to possession of a firearm by a felon as
part of a plea agreement, but sought to
withdraw his plea before the district
court accepted it. The district court
denied Shaker’s motion to withdraw his
plea, and Shaker appeals. We reverse and
remand.

I.

  After federal agents learned that Marvin
Harris was selling crack cocaine from
John’s Food Store in Gary, Indiana, they
arranged a series of controlled buys
through a cooperating witness. After the
fourth buy the agents executed a search
warrant for the store, seizing cash,
crack cocaine, and guns from the check-
out area and detaining Shukri Shaker, who
was working as a cashier. Shaker
cooperated with the agents, directing
them to crack cocaine hidden in a false-
bottom can behind the check-out counter
and explaining that although he knew of
Harris’s crack dealing, he was not
involved. Shaker told the agents that he
worked for his brother Gamal, the store’s
owner, and that when he asked Gamal about
Harris’s activities he was told to mind
his own business. Harris too was
interviewed; he told the agents that he
shared the profits from his drug sales
only with Gamal, not Shaker, but conceded
that both brothers assisted his sales by
exchanging cash for crack from behind the
check-out counter.

  In July 1999 a grand jury returned a
three-count indictment charging Shaker,
Gamal, and Harris with conspiracy,
possession of crack with intent to
distribute, and maintenance of a
crackhouse. The government, however,
agreed to dismiss the indictment as to
Shaker in exchange for his guilty plea to
a one-count information charging Shaker
with possession of a firearm by a felon,
18 U.S.C. sec. 922(g)(1). That plea
agreement made no mention of the drug
sales. After a change-of-plea hearing on
November 4, 1999, the district court,
despite finding Shaker competent and his
plea knowing, voluntary, and supported by
a sufficient factual basis, explicitly
deferred acceptance of Shaker’s plea:

I am deferring my decision on acceptance
or rejection of your plea of guilty and
your Plea Agreement until after I’ve had
an opportunity to study the Presentence
Report. If your plea of guilty and your
Plea Agreement are then accepted, I will
so advise you.

  On December 15, the facts underlying the
soon-to-be dismissed drug charges
resurfaced in the PSR: the probation
office determined that in violating sec.
922(g)(1) Shaker possessed the firearms
"in connection with" the drug offenses
and proposed a "cross reference" to a
drug crimes guideline. See U.S.S.G.
sec.sec. 2K2.1(c)(1)(A); 2D1.1. The
application of the drug guideline
resulted in a minimum term of
imprisonment of 84 months, four times the
minimum term contemplated by the firearms
guideline. On December 23 the government
objected to the cross reference to the
drug guidelines, arguing in identical
language in both a written objection to
the PSR and in a memorandum to the
probation officer:

  [Sec.] 2K2.1(c)(1) requires the
defendant to use or possess a firearm
during the commission of another offense.
The government has no evidence that the
defendant used or possessed a firearm
during any of the crack sales. The
government believes this section is not
applicable to the defendant.

  Additionally, the government does not
believe that the drug dealing is
"relevant conduct" to the crime of a
Felon in Possession of a Firearm, or that
it falls under the "common scheme" or
"same course of conduct" as defined in
[sec.] 1B1.3(a)(2) and the Commentary.

Shaker filed a similar objection on
January 5, 2000, but the probation
officer defended his initial
recommendation in a January 14 addendum
to the PSR. Shaker then re-entered
negotiations with the government, and on
February 4 the government moved to
postpone Shaker’s sentencing to allow
time for Shaker to provide additional
information and for the government to
file a motion for downward departure
based on Shaker’s substantial assistance
to authorities. See U.S.S.G. sec. 5K1.1.

  The government, though, never moved for
a downward departure, and on October 4
Shaker moved to withdraw his guilty plea,
arguing that the government led him to
believe during plea negotiations that he
would receive a lesser sentence
unaffected by the conduct related to the
dismissed drug counts. Shaker filed an
amended motion on October 10, arguing
that the government agreed to limit his
accountability to the facts stipulated in
the plea agreement and that any sentence
based on additional facts made his guilty
plea involuntary. The amended motion also
noted that the district court had
deferred acceptance of Shaker’s plea
pending review of the PSR:

  13. Further, the Court upon taking of
said Plea, advised the Defendant that it
would advise the Defendant as to whether
his Plea would be accepted or rejected on
his Sentencing Date subject to receipt of
said Pre-Sentence Investigation Report.
As such, the Court can either reject or
accept the version as to additional facts
submitted by Probation.

In its October 12 response, the
government urged denial of Shaker’s
motions, arguing that Federal Rule of
Criminal Procedure 32(e) prevented
withdrawal of a plea without a "fair and
just reason" and that Shaker had failed
to offer such a reason. The district
court denied Shaker’s motions after a
hearing on November 16. Shaker reiterated
his objections to a sentence based on the
drug offenses at his January 10, 2001
sentencing hearing, but this time
thegovernment sided with the probation
officer and argued that the drug offenses
qualified as relevant conduct. The court
adopted the guidelines calculations in
the PSR and sentenced Shaker to 84
months’ imprisonment. Shaker appeals.

II.

  On appeal, the government contends that
the district court did not abuse its
discretion in denying Shaker’s motions to
withdraw his guilty plea because Shaker
failed to comply with Federal Rule of
Criminal Procedure 32(e). The rule
provides that "[i]f a motion to withdraw
a plea of guilty . . . is made before
sentence is imposed, the court may permit
the plea to be withdrawn if the defendant
shows any fair and just reason." Fed. R.
Crim. P. 32(e). Shaker argues that Rule
32 applies only to accepted guilty pleas.

  The government acknowledges that none of
our cases speak to whether Rule 32
governs unaccepted pleas, but argues that
the question is irrelevant because in
Shaker’s case the district court’s
findings on voluntariness and the
adequacy of the factual basis constituted
the "functional equivalent of
acceptance." The Fifth Circuit takes this
approach, viewing the deferred acceptance
of a plea pending PSR review as
"provisional acceptance" so long as all
relevant Rule 11 findings have been made.
See United States v. Grant, 117 F.3d 788,
790-92 (5th Cir. 1997). Indeed, the
Fifth, Sixth, and Eighth Circuits have
concluded that acceptance is largely
irrelevant and that Rule 32 applies
whenever the district court has conducted
a thorough Rule 11 colloquy--even if the
court defers acceptance. See id.; United
States v. Mader, 251 F.3d 1099, 1104-05
(6th Cir. 2001); United States v. Payton,
168 F.3d 1103, 1105 (8th Cir. 1999).

  Unlike the Fifth Circuit, however, we
cannot construe deferral as acceptance.
In United States v. Ellison, 835 F.2d
687, 689-90 & nn. 4-5 (7th Cir. 1987), a
case not acknowledged by the government,
we explicitly encouraged district courts
to defer acceptance of a guilty plea
pending review of the PSR. See also
United States v. Ewing, 957 F.2d 115, 118
n.2 (4th Cir. 1992) (noting that nothing
prevents such a practice). To now
construe deferral as acceptance would
render meaningless a practice that we
have endorsed, and in this case would
require us to ignore the district court’s
clear expression of intent to defer
acceptance.

  Nor are we willing to take an approach
that minimizes the importance of the
court’s acceptance of the guilty plea. We
view a guilty plea as a process involving
both the defendant and the district
court, and culminating in the court’s
acceptance of the plea. The tenor of the
Supreme Court’s opinion in United States
v. Hyde, 520 U.S. 670 (1997), supports
our understanding that acceptance is a
crucial part of this process. See id. at
674 (Rule 11 lists "steps a district
court must take ’[b]efore accepting a
plea of guilty,’ and without which it
’shall not accept a plea of guilty.’
Based on this language, we conclude that
once the court has taken these steps, it
may, in its discretion, accept a
defendant’s guilty plea."). Indeed, until
the plea is accepted it might be said
that there is nothing for the defendant
to withdraw.

  Accordingly, we hold--like the Second
and Ninth Circuits, see United States v.
Persico, 164 F.3d 796, 800-01, 806 (2d
Cir. 1999); United States v. Alvarez-
Tautimez, 160 F.3d 573, 576 (9th Cir.
1998)--that Rule 32(e) is triggered only
when the district court completes the
plea process by accepting the plea. Thus,
in this case, the district court should
have permitted Shaker to withdraw his
plea freely, without any inquiry into
Shaker’s reasons for seeking to set it
aside. When Shaker sought to unwind his
plea, the district court had not yet
agreed to accept it; Shaker thus needed
no explanation for his change of heart.

  Accordingly, the judgment is REVERSED and
the case REMANDED to permit Shaker to
withdraw his guilty plea.
