Opinion
CR 12-124-PHX-FJM
08-21-2012
United States of America, Plaintiff, v. Shaun Robert Espino, Defendant.
ORDER
The court has before it Magistrate Judge Anderson's Recommendation with respect to defendant's conditional plea of guilty. (Doc. 44). He points out that Gallaher v. United States, 548 F. 3d 713 (9th Cir. 2008) applies Rule 32(e)(1), Fed. R. Crim. P. , the prohibition against disclosure of the presentence report until the defendant "has pleaded guilty," to the time before a judge "consents" to and accepts a conditional plea of guilty under Rule 11(a)(2), Fed. R. Crim. P.
We must, of course, distinguish between a plea of guilty under Rule 11(a) and a plea agreement under Rule 11(c), Fed. R. Crim. P. The court may always defer a decision on accepting a plea agreement "until the court has reviewed the presentence report." Rule 11(c)(3)(A), Fed. R. Crim. P. That is quite different than trying to defer consent on a conditional guilty plea until one has seen the presentence report, the practice at issue in Gallaher.
The net result is that we should consent or withhold consent to a conditional plea under Rule 11(a)(2) before we see the presentence report, but we may defer acceptance of the plea agreement under Rule 11(c)(3)(A) until after we have seen the presentence report. We are aware of no reason why we should not consent to a conditional plea of guilty here. It simply allows defendant to preserve his legal issue on the motion to suppress without wasting everyone's time and money on a trial. We still preserve the right to reject the plea agreement at the time of sentencing.
Accordingly, it is ORDERED consenting to the conditional plea of guilty under Rule 11(a)(2), and accepting the plea of guilty under Rule 11(b). It is further ORDERED deferring acceptance of the plea agreement under Rule 11(c)(3)(A) until the time of sentencing.
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Frederick J. Martone
United States District Judge
cc: The Hon. Lawrence O. Anderson