          United States Court of Appeals
                      For the First Circuit

No. 14-1187

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                     JUAN CARLOS DÁVILA-RUIZ,

                      Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

           [Hon. Gustavo A. Gelpí, U.S. District Judge]
        [Hon. Silvia Carreño-Coll, U.S. Magistrate Judge]



                              Before

                       Howard, Chief Judge,
                 Selya and Lynch, Circuit Judges.



     Liza L. Rosado-Rodríguez, with whom Eric Alexander Vos,
Federal Public Defender, and Vivianne M. Marrero, Assistant
Federal Public Defender, Supervisor, Appeals Section, were on
brief, for appellant.
     María L. Montañez Concepción, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa,
Assistant United States Attorney, Chief, Appellate Division, and
Thomas F. Klumper, Assistant United States Attorney, were on brief,
for appellee.
June 23, 2015
             SELYA,      Circuit    Judge.         Federal       Rule     of     Criminal

Procedure 11(d)(1) provides that a defendant may withdraw a guilty

plea "for any reason or no reason" at any time before the court

accepts it.      The matter at hand requires us to decide a question

of first impression in this circuit concerning the operation of

this rule.       The district court thought that the defendant's

execution of a plea agreement, his consent to have a magistrate

judge     conduct     the     change-of-plea        colloquy,       his        subsequent

participation       in      such   a     hearing,    the        magistrate        judge's

recommendation      that     the   tendered      plea     be    accepted,        and   the

defendant's      failure      to   make     a    timeous        objection       to     that

recommendation        combined     to     remove    the        defendant       from     the

protective carapace of the rule.                Concluding, as we do, that the

district court erred, we vacate the judgment below and remand with

directions to grant the defendant's plea-withdrawal motion and to

conduct further proceedings consistent with this opinion.

        We briefly rehearse the relevant facts and travel of the case.

In July of 2012, a federal grand jury sitting in the District of

Puerto Rico returned an indictment charging defendant-appellant

Juan    Carlos   Dávila-Ruiz       and    two    co-defendants      with       attempted

carjacking, see 18 U.S.C. § 2119, and the use of a firearm during

a crime of violence, see id. § 924(c).                  All of them pleaded not

guilty and, following some preliminary skirmishing, the government

proposed plea agreements across the board.


                                         - 3 -
     On April 23, 2013 ─ with trial imminent ─ the defendant moved

to change his plea.       One of his co-defendants chose the same

course, but the other (Edwin Suárez-Rivera) opted for trial.      The

district court referred the defendant's motion to a magistrate

judge with instructions to prepare a report and recommendation.

     Before any hearing was held, the defendant entered into a

plea agreement with the government.       As part of this bargain, the

defendant agreed to plead guilty to a substitute information

charging him with the firearms offense in exchange for dismissal

of the two-count indictment.         The parties jointly agreed to

recommend a 60-month sentence (the mandatory minimum under the

statute of conviction).

     On May 24, the magistrate judge convened a change-of-plea

hearing.   She began by informing the defendant of his right to

have the hearing conducted by the district court.            She then

explained: "[If] by the end I am convinced that you are doing this

intelligently, knowingly and voluntarily, then I [will] issue a

report and recommendation telling the [district judge] that he

should accept your guilty plea. But my recommendations may be

reviewed   by   the   [district    judge] . . . ."     The   defendant

acknowledged his understanding of this procedure and signed a

waiver form (the Waiver) variously entitled "Waiver of Right to

Trial by Jury" and "Consent to Proceed before a United States




                                  - 4 -
Magistrate Judge in a Felony Case for Pleading Guilty (Rule 11,

Fed.R.Crim.P.)."   Pertinently, the Waiver stated:

           I HEREBY: Waive (give up) my right to trial
           before a United States District Judge and
           express my consent to proceed before a
           Magistrate-Judge while I plead guilty (Rule 11
           proceedings) and the entry of a judgment of
           conviction   upon    the    Magistrate-Judge's
           recommendation.   I understand that sentence
           will be imposed by a District Judge.

     At the conclusion of the hearing, the magistrate judge found

that the defendant's plea was knowing and voluntary and had a basis

in fact.    She then stated that she would recommend that the

district court accept the guilty plea.

     On June 3, the magistrate judge issued a written report and

recommendation (the R&R).   The R&R contained a recommendation that

the district court accept the plea.    It concluded by advising the

parties that they had 14 days within which to file objections and

warned that failure to do so would result in a waiver of the right

to appeal from the magistrate judge's findings and conclusions.

See 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(2).       Fourteen

days came and went, and no objections were lodged.   Nevertheless,

the district court took no action to adopt the magistrate judge's

recommendation and thereby accept the defendant's plea.

     In late August, defense counsel learned that the government

had dropped the charges against Suárez-Rivera.    She apprised the

prosecutor that, in light of this development, the defendant might



                               - 5 -
want to withdraw his plea.            The district court held a hearing on

October    21,   at   which    time    defense   counsel   related   that   the

defendant would be moving to withdraw his plea.

      On November 13, the defendant filed a plea-withdrawal motion.

Citing Rule 11(d)(1), he claimed that because the court had not

yet accepted his guilty plea, he had an absolute right to withdraw

it.   The government objected, arguing that the magistrate judge

had authority to accept the defendant's guilty plea; that Rule

11(d)(2)(B) therefore governed; and that the defendant would have

to show a "fair and just reason" in order to withdraw his plea

under that rule.

      The district court sided with the government: it noted that

it had reviewed the change-of-plea transcript and that the plea

had been "adequately and thoroughly taken," with the result that

Rule 11(d)(1) was no longer available.             Since the defendant had

not proffered a fair and just reason for withdrawing his plea, the

court denied the plea-withdrawal motion and thereafter denied a

motion for reconsideration.

      On   January    27,     2014,    the   district   court   convened    the

disposition hearing, adopted the R&R, accepted the guilty plea,

and sentenced the defendant to serve a 60-month term of immurement.

This timely appeal ensued.

      The defendant contends that the district court erred in

refusing to allow him to withdraw his guilty plea without showing


                                       - 6 -
a fair and just reason for doing so.   In support, he asserts that

because the district court had not accepted the plea, Rule 11(d)(1)

entitled him to withdraw his plea without any explanation.      We

turn directly to this contention.

     Rule 11 governs the entry, acceptance, and withdrawal of pleas

in federal criminal cases.   The benchmark for determining whether

a plea may be withdrawn varies depending on the timing of the

defendant's motion.   When a plea has been tendered but not yet

accepted by the court, a defendant can withdraw it "for any reason

or no reason."   Fed. R. Crim. P. 11(d)(1).    During the interval

between the court's acceptance of a plea and the imposition of

sentence, a defendant can withdraw his plea only if he establishes

"a fair and just reason" for doing so.1 Id. 11(d)(2)(B).

     We normally review a district court's denial of a plea-

withdrawal motion for abuse of discretion.    See United States v.

Torres-Rosario, 447 F.3d 61, 65 (1st Cir. 2006); United States v.

Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994).   But a material

error of law is always an abuse of discretion.   See United States

v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998).      A claim that the

district court was without discretion to deny such a motion is a




     1 A defendant's ability to withdraw his plea after sentencing
is a different matter, see Fed. R. Crim. P. 11(e); Wilkins v.
United States, 754 F.3d 24, 27-28 (1st Cir. 2014), and is beyond
the scope of this opinion.


                               - 7 -
question of law, engendering de novo review.2 See United States v.

Byrum, 567 F.3d 1255, 1258-59 (10th Cir. 2009); United States v.

Jones, 472 F.3d at 905, 908-09 (D.C. Cir. 2007).

     Rule 11(d)(1) is clear as a bell: it renders a district court

powerless to deny a plea-withdrawal motion when the motion is made

before the plea has been accepted.     See, e.g., United States v.

Arami, 536 F.3d 479, 483 (5th Cir. 2008); Jones, 472 F.3d at 908.

In this case, the defendant asseverates that he filed his plea-

withdrawal motion prior to the time that the district court

accepted his plea and that, therefore, the court had no choice but

to grant the motion without regard to his reasons for seeking such

relief.   For all practical purposes, then, the question reduces to

whether the undisputed chain of events requires a finding that the

plea was accepted before the defendant moved to withdraw it.

     We recognize that Rule 11 does not specify how a plea is to

be accepted.   See United States v. Battle, 499 F.3d 315, 321 (4th

Cir. 2007).    Sometimes, the use of equivocal language during a

change-of-plea colloquy may complicate the issue.   See Byrum, 567

F.3d at 1259-64; Jones, 472 F.3d at 909; United States v. Head,

340 F.3d 628, 630-31 (8th Cir. 2003).     Here, however, there was



     2 There may be cases — unlike this one — in which a district
court's ruling on a plea-withdrawal motion will turn on
controverted facts.     While such cases may call for a more
deferential standard of review, there are no controverted facts
here.


                               - 8 -
nothing equivocal about the magistrate judge's statements and

actions; those statements and actions were crystal clear.                          During

the hearing, the magistrate judge said that she would recommend

that the district court accept the plea and she proceeded to do

just        that.   Because     the      magistrate    judge    merely      recommended

acceptance of the plea rather than actually accepting it, further

action by the district court was needed.                     See Arami, 536 F.3d at

485; Torres-Rosario, 447 F.3d at 67; United States v. Reyna-Tapia,

328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

        That action was slow in coming.               As the government concedes,

the district court did not adopt the R&R (and, thus, accept the

plea)       until   well   after    the    November     13    filing   of    the    plea-

withdrawal motion.3         That was too late to strip the defendant of

the prophylaxis of Rule 11(d)(1).

        In an effort to efface this reasoning, the government strives

to convince us that the signing of the Waiver, the magistrate

judge's        handling    of      the    change-of-plea        hearing,      and     the

defendant's failure to object within 14 days to the R&R coalesced

to bring about an accepted plea.               We are not persuaded.




       Even though the district court mentioned at the October 21
        3

hearing that it had listened to the audio recording of the change-
of-plea colloquy and "c[ould] reject any motion to withdraw," there
is nothing in the record to indicate that the court accepted the
plea at that time.


                                           - 9 -
      To   begin,   the   government's       reliance     on   the    Waiver      is

misplaced. Fairly read, the Waiver denotes the defendant's consent

to having the magistrate judge conduct the Rule 11 hearing.

Nothing in the text of the Waiver, however, contradicts the premise

that acceptance of the plea was reserved to the district court.

To the contrary, the Waiver expressly refers to the magistrate

judge's recommendation — and a recommendation to accept a plea is,

by its very nature, not itself an acceptance of the plea.                       That

the   Wavier   means   exactly   what   it    says   is   borne      out   by   the

magistrate judge's forthright explanation at the hearing that the

decision about whether to accept the plea remained exclusively

with the district court.

      Relatedly, the government argues that, consistent with the

Federal Magistrates Act and the Constitution, a magistrate judge

can accept a defendant's plea in a felony case when the defendant

consents to that practice.       The courts of appeals are divided on

this question, compare United States v. Harden, 758 F.3d 886, 888-

91 (7th Cir. 2014) (holding that the practice is unlawful, even

when the defendant consents), with United States v. Benton, 523

F.3d 424, 431-33 (4th Cir. 2008) (contra), and this court has not

taken sides.4    Nor do we have any occasion to do so today: even if




      4Our opinion in Torres-Rosario does not concern this issue.
That opinion merely explained that where, as here, a magistrate
judge recommends that a plea be accepted, acceptance does not occur

                                  - 10 -
magistrate judges can, by consent, accept pleas in felony cases,

that is not what happened here.                The defendant did not consent to

acceptance of his plea by the magistrate judge, and the magistrate

judge explicitly confirmed that she was not accepting the plea.

        The last arrow in the government's quiver is its suggestion

that the defendant's failure to object to the R&R within the

prescribed        14-day     period,     see    Fed.        R.    Crim.    P.    59(b)(2),

pretermitted any later attempt to withdraw his plea under Rule

11(d)(1).         This suggestion mixes plums with pomegranates: it

conflates     a    defendant's       time-limited           right     to     object    to    a

magistrate judge's findings and conclusions with a defendant's

right    to   withdraw     his   plea     under    Rule          11(d)(1).      These    two

safeguards are separate and distinct.                   See Reyna-Tapia, 328 F.3d

at   1121.        Although    the    absence      of    a    timely    objection        to   a

magistrate judge's report and recommendation clears the way for a

district court to adopt the recommendation and accept the plea, it

does not mitigate a district court's failure to do so.

        Let us be perfectly clear.             We recognize that many district

courts face burgeoning criminal dockets and that magistrate judges

can help to shoulder some of the load.                      But if a district court

chooses to use magistrate judges to conduct plea hearings, the

court    is   best    served        by   acting    on       the     magistrate        judge's


until the district court takes further action. See Torres-Rosario,
447 F.3d at 67.


                                         - 11 -
recommendation soon after the expiration of the 14-day period for

filing objections.   For so long as the court delays in doing so,

the defendant remains free to withdraw his plea.     Any other result

would contravene Rule 11(d)(1), the plain language of which grants

a defendant the absolute right to withdraw his plea at any time

before it is accepted.

     We reject the idea, espoused both by the district court and

by the government, that allowing defendants to withdraw their pleas

in circumstances like those at hand will throw the current plea-

taking regime into chaos.   If there is a problem in this case, it

does not stem from the clear mandate of Rule 11(d)(1) but, rather,

from the district court's delay in acting upon the R&R.        Allowing

several months to elapse after the expiration of the 14-day period

for filing objections left the defendant free to exercise the right

afforded to him by Rule 11(d)(1).

     We need go no further.     For the reasons elucidated above, we

vacate the judgment below and remand with directions to grant the

defendant's   plea-withdrawal    motion   and   to   conduct    further

proceedings consistent with this opinion.

Vacated and remanded.




                                - 12 -
