Ellis

Concurrence by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge TROTT; Dissent by Judge KLEINFELD; Concurrence in Dissent by Judge GOULD.

We write en banc to clarify that the acceptance of a criminal defendant’s guilty plea is a judicial act distinct from the acceptance of the plea agreement itself. Once the district court accepts a guilty plea, the conditions under which the plea may be withdrawn are governed exclusively by Rule 11 of the Federal Rules of Criminal Procedure. 1 Where a district court accepts a plea of guilty pursuant to a plea agreement, defers acceptance of the agreement itself, and later rejects the terms of the plea agreement, it must, according to the plain language of Rule 11, “give the defendant an opportunity to withdraw the plea.” Fed.R.Crim.P. 11(c)(5)(B). 2 Because Rule 11 contains no provision permitting the district court itself to determine that the plea should be vacated following its rejection of the plea agreement, the district court’s choice to do so here was error. We therefore issue the writ of mandamus.

1. Background.

This appeal arises because, as is commonly the case, Ellis pleaded guilty to lesser charges than those set…

concurring:

I join Judge Wardlaw’s excellent opinion in full and parts III, IV and V of Judge Trott’s fine concurrence. I write separate *1212 ly to confess my befuddlement that we’re not unanimous.

I can’t help scratching my head at my dissenting colleagues’ dogged insistence that they’ve found a plausible way to reach the result they prefer. (Befuddlement and head-scratching often cause me to be melodramatic and use heated rhetoric, so delicate souls are cautioned to continue reading only under strict medical supervision.)

While the dissent tries to swaddle the case in all sorts of meta-considerations about the titanic struggle between the judicial and executive branches over the soul of the criminal justice process, see, e.g., Kleinfeld Dissent at 1229, 1231-1232, 1232, 1233, 1236, 1238, 1239, 1240-1241, the question presented is narrow: Does a district court have sua sponte authority to vacate a previously entered and accepted guilty plea? The dissent points to nothing that confers such authority on district courts — not in the Federal Rules of Criminal Procedure, not anywhere else.

Yet, this is precisely the kind of authority one would expect to be granted expressly, if…

concurring in dissent:

I join Judge Kleinfeld’s excellent dissent. I write only to express disagreement with that part of my colleague Judge Kozinski’s concurrence which I view as rhetoric unrelated to the substantive issue in contest. Judge Kozinski seeks to portray the dissenters as having a “dogged insistence that they’ve found a plausible *1242 way to reach the result they prefer.” With this I respectfully disagree. Whether the majority’s reasoning or the dissent’s reasoning is more plausible, let others in academia or in the courts decide. For myself, I venture that there is no “result” in this case that I “prefer.” More precisely, there is a serious dispute about the proper interpretation of Rule 11. In simple terms the majority applies one reasonable reading of Rule 11, that Rule 11 should be interpreted by implication to preclude a district court from striking a previously accepted plea after a plea agreement has been rejected; Judge Kle-infeld in his dissent, in which I concur, urges another reasonable reading, that Rule 11 should be interpreted by implication to permit the district court to reassess its initial acceptance of the plea in light of its later rejection of…