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Withdrawing a Guilty Plea

Author: LegalEase Solutions


Whether a Defendant can withdraw a guilty plea based on misunderstanding of how much restitution and or forfeiture is required to be paid at the time the plea was made.


Yes. A Defendant can withdraw a guilty plea based on misunderstanding. Per Rule 32 of the Federal Rules of Criminal Procedure, the court may permit withdrawal of a guilty plea if there is a fair and just reason. The burden of proof is on the Defendant to show that there exists a valid ground for withdrawal of the plea. The general notion is that a guilty plea should be made knowingly and voluntarily, with full knowledge of the consequences. A plea made otherwise is invalid.


Per Fed. R. Crim. P. 32,

If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, imposition of sentence is suspended, or disposition is had under 18 U.S.C. § 4205(c), the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255.

Fed. R. Crim. P. 32.

“Although Rule 32(e) provides that a defendant may move to withdraw a guilty plea upon a showing of a ‘fair and just reason,’ it is basic that ‘[a] defendant has no absolute right to withdraw his guilty plea.’” United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) (quoting United States v. Williams, 23 F.3d 629, 634 (2d Cir.1994)). “The defendant bears the burden of demonstrating valid grounds for relief.” Id. (citing United States v. Maher, 108 F.3d 1513, 1529 (2d Cir.1997)).

“Pursuant to Fed.R.Crim.P. 32(d), a district court may permit withdrawal of a guilty plea prior to sentencing ‘upon a showing by the defendant of any fair and just reason.’” United States v. Gonzalez, 970 F.2d 1095, 1099-100 (2d Cir. 1992). “Although this standard implies that motions to withdraw prior to sentence should be liberally granted, a defendant who seeks to withdraw his plea ‘bears the burden of satisfying the trial judge that there are valid grounds for withdrawal, taking into account any prejudice to the government.’” Id. (quoting United States v. Quinones, 906 F.2d 924, 928 (2d Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 789, 112 L.Ed.2d 851 (1991)) (citing United States v. Russell, 686 F.2d 35, 38 (D.C.Cir.1982)).

To determine whether the defendant has proffered a “fair and just reason” to justify withdrawal, a district court should consider, inter alia: (1) the amount of time that has elapsed between the plea and the motion; (2) whether the defendant has asserted a claim of legal innocence; and (3) whether the government would be prejudiced by a withdrawal of the plea.

United States v. Doe, 537 F.3d 204, 210-11 (2d Cir. 2008) (quoting United States v. Couto, 311 F.3d 179, 185 (2d Cir.2002)).

“Where a motion to withdraw a plea is premised on involuntariness, the ‘defendant must raise a significant question about the voluntariness of the original plea.’” Id. (quoting Torres, 129 F.3d at 715).

“A guilty plea is no mere formality, but a ‘grave and solemn act.’” United States v. Adams, 448 F.3d 492, 497-98 (2d Cir. 2006) (quoting United States v. Arteca, 411 F.3d 315, 319 (2d Cir.2005)). “A guilty plea waives important rights, and therefore it ‘is valid only if done voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.’” Id. (quoting Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 2405, 162 L.Ed.2d 143 (2005)). “A guilty plea should be an ‘intelligent choice among the alternative courses of action open to the defendant.’” Id. (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). “This requires that the defendant is informed of all the crime’s elements, otherwise the plea is necessarily invalid.” Id. (citing Bradshaw, 125 S.Ct. at 2405).

Fed. R. Crim. P 11 (c):

Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

Urena-Torres v. United States, 165 F.R.D. 12, 14 (N.D.N.Y. 1996)

Fed.R.Crim.P. 11 contains specific instructions for the conduct of plea hearings. Rule 11(c) is particularly explicit. In part, it requires that the court, before accepting a guilty plea, personally advise the defendant and determine that the defendant understands “the maximum possible penalty provided by law, … and, where applicable, that the court may also order the defendant to make restitution to any victim of the offense….”

United States v. Khan, 857 F.2d 85, 86-87 (2d Cir. 1988) opinion modified on reh’g, 869 F.2d 661 (2d Cir. 1989)

In Khan, 857 F.2d at 87, Defendant’s guilty plea was vacated on court’s failure to advise the Defendant that the sentence for wire fraud included restitution to the government. The Defendant was not aware of the restitution amount that would be imposed on him. Had he been informed of the same, he would have taken a different decision. The Defendant was sentenced to imprisonment, fines, and an order to pay restitution to the government for the offense of wire fraud. He argued that his guilty plea should be vacated, as he was not informed that the maximum penalty could include a restitution amount to the government. The court vacated Defendant’s plea.

Similarly, in the instant case, the Defendant was not informed by his attorney of a separate forfeiture balance at the time of making the plea. “Ineffective assistance of counsel may render a guilty plea involuntary, and hence invalid.” Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir.1992).

“[A] defendant’s guilty plea must be both knowing and voluntary in order to be valid, and that the defendant’s decision to plead must constitute a ‘deliberate, intelligent choice between available alternatives.’” United States v. Fernandez, 877 F.2d 1138, 1142 (2d Cir. 1989) (quoting Rosado v. Civiletti, 621 F.2d 1179, 1191 (2d Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980)).

“To ensure that the plea is made knowingly and voluntarily, the district court must, before accepting the plea, inform the defendant of ‘the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.’” Id. (quoting Fed.R.Crim.P. 11(c)(1)).

“[T]he purpose of Rule 11 is to ensure that a guilty plea represents a voluntary and intelligent choice for the defendant.” Id. (citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). Following Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, “[A] Rule 11 violation occurs where a defendant is provided with a ‘mix of information’ that inaccurately sets forth ‘the nature of the charge to which a plea is offered, the mandatory minimum penalty provided by law … and the maximum possible penalty provided by law.’” United States v. Harrington, 354 F.3d 178, 183 (2d Cir. 2004) (quoting United States v. Gutierrez Rodriguez, 288 F.3d 472, 476 (2d Cir.2002)).


It may be concluded that a guilty plea should be made knowingly and voluntarily. It is important that the person making the plea is aware of the maximum mandatory and possible penalty provided by the law for the offense committed. Rule 11 of the Federal Rules of Criminal Procedure provides specific instructions regarding the same. It is possible for a person to withdraw a plea of guilty if it is made unknowingly and involuntarily.