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Our final argument of the day, U.S.

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versus Romero, number 23-8056.

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Mr. Ray Chabat.

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So this is United States versus Romero, and it comes to our court from the United States District Court for the District of Wyoming, which is another state in our 10th Circuit from which we hear appeals.

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Mr. Romero was charged with conspiracy and possession with intent to distribute methamphetamine.

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He entered into a plea agreement with the government under which he would plead guilty to the conspiracy count and the government agreed to dismiss the remaining count.

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And the government also agreed to recommend a sentence at the bottom of the applicable advisory sentencing guideline range.

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The district court ultimately refused to accept the guilty plea and Mr. Romero then went to trial.

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He was convicted by a jury of both counts, and he was sentenced to 188 months of imprisonment.

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Mr. Romero now appeals, arguing the district court erred in refusing to accept his guilty plea, and he asks us to vacate the judgment and remand the case.

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Thank you, Your Honors.

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Good afternoon.

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May it please the Court, Jake Rauchabot, for the Appellant, Salvador Romero.

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After Mr. Romero stated at his change of plea hearing that he committed the offense because he was threatened, the District Court rejected his guilty plea for an insufficient factual basis.

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This was error.

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Mr. Romero's factual basis presented to the Court sufficiently established each of the elements of the offense,

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His claim that he was threatened neither negated any of these elements nor established an affirmative justification defense.

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What does it mean to establish a factual basis for a plea agreement?

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So this court's precedent says that to determine whether there's a sufficient factual basis, the court has to compare the conduct admitted by the defendant with the elements of the offense.

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And once that's satisfied, is it your position that under Rule 11, the district court has no discretion, it must accept the plea, even if as here, your client said he was guilty in part?

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Well, there's any number of reasons that the district court could exercise this discretion to reject a guilty plea.

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A district court doesn't have discretion to reject it for an insufficient factual basis when there is

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when all of the elements of the offense are met.

[00:02:49] Speaker 01:
So I think you put differently, but maybe I'm misunderstanding.

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Is it your position that if the elements of the offense, there's a factual basis for the elements of the offense, it's your position that at that point under rule 11, the district court does not have discretion to reject the plea?

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Doesn't have discretion to reject it for an insufficient factual basis.

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And that's what the district court did here.

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There is, as a matter of law, a sufficient factual basis here because all the elements of the offense were met.

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Nothing he said about being threatened negated any of those elements, and nothing he said established an affirmative defense.

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In fact, the government... So you're including in that an affirmative defense.

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You agree that if the defendant

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at the colloquy says something supporting an affirmative defense, then the judge could refuse to accept the plea agreement in that situation.

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Yes.

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I think if a defendant had established a factual basis for an affirmative defense, the district court could then say, I'm finding that the factual basis here doesn't support guilt.

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And I think that's what the district court did here.

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legally erroneous in reaching that determination.

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How much do you have to show about an affirmative defense?

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Does it have to be a statement of all the elements required for the defense?

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Or is it enough that the person says, I was forced into it, and maybe for various reasons we wouldn't accept that.

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as a defense, which is what happened here when it comes down to it.

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But at that point, I'm not going to accept the plea now.

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Let's look into this.

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Let's proceed with the case.

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And if

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the defendant came back and said, well, I was pressured, but it's not sufficient coercion to provide a defense under the law, so I'd like to have my plea accepted.

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Why wasn't that in a perfectly appropriate way for the judge to proceed and say, I've got questions here, this is something new?

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He says he was coerced.

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I'm not going to accept the plea.

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He hasn't proved the affirmative defense yet.

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We haven't examined yet what's necessary for that affirmative defense.

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But I'm not ready to accept the plea at this time.

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Why wouldn't that be a perfectly wise thing to do for the judge?

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Because under this court's test for the sufficiency of a factual basis, you compare, you look at what the defendant has admitted and compare to the elements of the offense.

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So here the elements are established.

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I don't think there's any dispute about that.

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And then in order for the factual basis to be insufficient, a defendant would have to set forth facts establishing an affirmative defense otherwise.

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Why establishing?

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Why not just raising?

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And if he said something, your client said something that injected the possibility of an affirmative defense.

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Why isn't that enough?

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even if we agree with you, factual basis for all the elements, he says something that raises, doesn't affirmatively establish, but raises, why isn't that perfectly appropriate in those circumstances for the district court to say, I'm not going to accept this plea?

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Because as far as all of the evidence and statements have been presented to the district court, the district court examines

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the factual basis that's been presented and has to come to the conclusion that this establishes guilt.

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It does not establish not guilt or innocence.

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And also I need to make clear that that's not what happened here where there's just some possibility of an affirmative defense because here, as the government agrees and the district court later found, his statements affirmably disproved

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any affirmative defense.

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Let me pause.

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You keep talking about this as an affirmative defense.

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I was forced to do it.

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That's my affirmative defense.

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But I don't know why you call it affirmative defense because the government's case required proof that he willfully intended to transport drugs.

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What he is saying is I did not willfully

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tend to transport drugs.

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So it seems to me like he is not saying, I think I've got an affirmative defense, but I still want to plead guilty.

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I think what he is saying is the government did not prove one of its essential elements in the case that I willfully intended to transport.

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And I think that makes it a much harder case for you.

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It would, but that's not my case.

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Well, how do you get around the fact that the element is willful

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intent to transport, and he is saying I wasn't willful because I was being coerced.

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My will was overridden by the threat to injure my knees.

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Because willful isn't actually an element.

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That's not the mens rea of

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conspiracy to commit drug trafficking.

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The district court did say that at one point when he initially rejected the guilty plea.

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He said, you know, you have to prove that you knowingly and willfully intended to distribute drugs.

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What is the CNTER requirement, the actual CNTER requirement to commit this crime?

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So it's that he agreed to possess with intent to distribute meth, knew the essential objective of the conspiracy,

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acted knowingly and voluntarily in joining the conspiracy, and that there was interdependence among members of the conspiracy.

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Well, if it is voluntarily, it falls into about the same thing of intended.

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He's saying I didn't voluntarily do it because I was coerced.

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So once again, though, the point is, he is saying you didn't prove, the government cannot prove one of his elements.

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Right.

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So voluntarily as it's used in that element that then acted knowingly and voluntarily in joining the conspiracy, that

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In that sense, it means it was knowing and volitional, that it wasn't through accident or mistake.

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And I say that in a footnote in my brief, footnote seven, that all this court requires to prove that element of drug conspiracy is that they consciously

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joined the conspiracy.

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So, given what has happened so far, then the defense attorney stands up and says, no, Judge, you have to accept this plea because his statement that he was coerced doesn't have any legal consequences.

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But the defendant, the defense attorney said nothing at this point, right?

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Yes, Your Honor, but it's my position.

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This is something new for the judge.

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We've got a new factor coming in.

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This is not your standard plea to a drug offense when you say I was coerced into it.

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So the judge says, I'm not going to accept your plea at this time.

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Did the judge say I'm never going to accept your plea?

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Don't you think this is something that needs to be worked out?

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I have a hard time criticizing the judge acting

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with the information the judge had at that time saying, I'm not proceeding with the guilty plea.

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And then the defense attorney, if you had a really sharp attorney like you, the attorney would say, Judge, you're wrong, he can plead to this.

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But the defense attorney obviously didn't proceed on that ground because they in fact raised a coercion defense, did they not?

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And the judge rejected it?

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Well, the government filed a motion to eliminate the precluded and they granted that.

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Yes, sir.

[00:10:49] Speaker 00:
So a couple things.

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One, if the district court is going to exercise some discretion to reject the guilty plea, it has to be somehow grounded in rule 11.

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Rule 11 doesn't give judges unfettered discretion to accept or reject unconditional guilty pleas.

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A district court does have discretion to

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accept or reject conditional guilty pleas, pleas of no lo contendere, plea agreements broadly, they have broad discretion to accept or reject those, but an unconditional guilty plea that satisfies the requirements of rule 11, which this did, a judge has no discretion to reject it.

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And that's, the Ninth Circuit has said that in Mancinas Flores,

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And so here, unless the district court is able to ground its rejection of the guilty plea in one of the rule 11 requirements, like insufficient factual basis, as it appears it did here, then it doesn't have some sort of general discretion.

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The government is saying, well, he was equivocal, he may have perjured himself, he wavered on this and this,

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But it's the ultimate responsibility of the judge to determine that the defendant in front of him is able to be convicted by guilty plea.

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And if there is equivocation, maybe that's not enough.

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But here he says, I'm guilty in part, I was threatened.

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And even if under the Supreme Court's decision in Dixon, I don't think you make this argument, but mens rea is not really at issue here because of duress.

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But duress is in the case.

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So you keep saying it had to be, it wasn't established.

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It's in the case.

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And it's ultimately the district court's responsibility to determine that this defendant is guilty.

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It's ultimately the district court's

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responsibility to determine whether there's a sufficient factual basis for the guilty plea.

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So this goes back to the first question I asked you.

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I think that your position is if there's a sufficient factual basis, meaning the elements of the offense have a sufficient factual basis, the district court no longer has discretion.

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It must accept the plea.

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Yes.

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How can that be under Rule 11?

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if applying rule 11 here, if the facts inject the possibility of an affirmative defense of duress.

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Because there's nothing in rule 11 that says what you're saying.

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It just says the district court, I mean, again, rule 11 doesn't grant district court's general discretion to accept unconditional guilty pleas.

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So if there's a sufficient factual basis, if the guilty plea is knowing and voluntary,

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all of the 10 or 20, however many, advisements a district court has to give a defendant.

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If all of that is met, then that's what I'm saying.

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A district court doesn't have just sort of general discretion to say, I'm uncomfortable with this.

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So you think the district court could reject a guilty plea even though the defendant says, I didn't have intent to distribute, for example?

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And that apparently is the language of the statute, if I'm not mistaken.

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If Mr. Mayor had come in and said, no, I didn't intend to distribute drugs.

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And this does happen.

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And I didn't intend to aid and abet others to distribute.

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I thought we were bringing it back to give it to the government for who knows why.

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But I didn't have an intent.

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Right.

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Because that would then undermine an essential element of the offense.

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So under that case, they could reject.

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Yes.

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But you're saying that here, the statement didn't go to an element.

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It went to an affirmative defense.

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But I don't know where this affirmative defense comes from.

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It seems to me, if it is in fact an affirmative defense, it is directly undercutting an element.

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And I don't see how that can happen.

[00:15:10] Speaker 00:
No, so there's basically two types of defenses.

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There are those that negate elements, the essential elements of the offense, in which case it's the government's burden to disprove that defense beyond a reasonable doubt.

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And then there's offenses, or sorry, defenses, affirmative defenses, that don't negate an element, but you still, if established by the defendant, it's the defendant's burden to prove that defense to a jury.

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So you agree that under case law, apparently,

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there has been an affirmative defense and grafted into this statute that if you have been coerced, you're not going to be guilty.

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Right.

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But it would be the defendant's burden to prove that.

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And I said this in the opening brief.

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The government agrees with me.

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The justification coercion defense is an affirmative defense that doesn't negate an element of defense.

[00:16:00] Speaker 03:
And it has to be established by what?

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By preponderance of the evidence or beyond a reasonable doubt by the defendant?

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Or is it that the government, once the defense is raised, must negate it by beyond a reasonable doubt?

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I believe it's the defendant's burden to prove by preponderance of the evidence, but I'm not 100% sure on that.

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One thing that concerns me here is I just know if the judge had taken this plea, we'd be up here for abuse to discretion by the judge and granting and accepting the plea.

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And your honor would reject that appeal, as the Fifth Circuit has done.

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Circuit courts have held that a district court's under no affirmative obligation to inquire into any potential affirmative defenses even once it's raised.

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And even if a defendant satisfies all of the elements of an affirmative defense, a district court still doesn't err in finding that there's a missing factual basis in accepting the guilty plea.

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Yes, please.

[00:17:02] Speaker 03:
I have no idea.

[00:17:03] Speaker 03:
It's gone.

[00:17:04] Speaker 00:
Sorry about that.

[00:17:05] Speaker 00:
All right.

[00:17:05] Speaker 00:
Thank you, Your Honor.

[00:17:15] Speaker 04:
May it please the Court?

[00:17:16] Speaker 03:
I'm sorry.

[00:17:17] Speaker 04:
Margaret Veerbuken for the United States.

[00:17:20] Speaker 04:
Good afternoon.

[00:17:24] Speaker 04:
I'm asking this Court to affirm the District Court conviction and sentence.

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As I argued in the brief,

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The defendant has waived the sole issue he's raised on appeal.

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And this court need not address the merits of his case and should not.

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But even if the court does go and address the merits, the court should find that there was no error, plain or otherwise.

[00:17:47] Speaker 02:
So do you, you're in agreement that that coercion would not, if it proves coercion, it would not negate the government's ability to prove the elements of the offense?

[00:18:02] Speaker 02:
There's an affirmative defense he might rely on, but it would not negate willful intent to show that I was coerced.

[00:18:13] Speaker 04:
I agree, but I need to qualify it.

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I agree in that an affirmative defense is not a legal element.

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And you could have, in the regular case, as Judge Hart mentioned, this was not the regular case.

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In the regular case, you have a plea, there's no issues raised, defendant doesn't equivocate, doesn't allege a coercion, and the defendant simply says, I did it and I'm guilty.

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In such a case, that I would say no, that it doesn't.

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Coercion negates,

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culpability, not necessarily mens rea.

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And that is true, in fact.

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But when you're talking about a plea, it also means you're legally innocent.

[00:18:53] Speaker 02:
So this is kind of important to me.

[00:18:57] Speaker 02:
I just want to make sure that if the defendant had said, I want to plead guilty, but they did not approve an element of the offense, that is, I disagree with one of the elements of the offense, you would agree the court could not accept that plea.

[00:19:13] Speaker 02:
I agree.

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But if he says, the government does prove all of his cases, but I think I prove an affirmative defense, which, if you agree that I prove it, would get me off.

[00:19:26] Speaker 02:
You wouldn't be able to convict me.

[00:19:28] Speaker 02:
And you're saying in that case, the government can accept the plea.

[00:19:34] Speaker 02:
In both cases, if he is right, whether he calls it an affirmative defense or a failure to prove an element, he gets off.

[00:19:42] Speaker 02:
But in one of the cases, he says, I can't be punished, but go ahead.

[00:19:45] Speaker 02:
I want to plead, and the court accepts it.

[00:19:48] Speaker 02:
In the other, he says, you can't prove it.

[00:19:50] Speaker 02:
I get off, but I still want to plead, and the court can't accept it.

[00:19:53] Speaker 02:
So I'm just really having trouble between the different legal impact, whether he is asserting an affirmative defense or a failure of the government to prove it.

[00:20:04] Speaker 04:
And to be clear, I think the analysis that he's getting off doesn't apply here.

[00:20:10] Speaker 04:
It's the case of accepting a plea.

[00:20:12] Speaker 04:
And as Judge Rossman has noted, how important a plea is because it's very consequential.

[00:20:17] Speaker 04:
And the defendant is giving up significant civil and constitutional rights.

[00:20:21] Speaker 04:
And so the court and the prosecution has an obligation to ensure that this plea is done knowingly and voluntarily.

[00:20:29] Speaker 04:
And so when we're talking about a plea judge, the defendant wouldn't be getting off.

[00:20:33] Speaker 04:
I think the court has the discretion to evaluate that case as the facts are presented.

[00:20:40] Speaker 04:
The defendant is saying, I would get off.

[00:20:44] Speaker 02:
I can guarantee I would get off because I can approve an affirmative defense which

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Once I prove it, you can't convict me.

[00:20:50] Speaker 02:
The jury couldn't convict me, but I still want to plead guilty.

[00:20:53] Speaker 02:
And you're going to say that's okay.

[00:20:55] Speaker 02:
You can do that.

[00:20:56] Speaker 04:
I am not saying that's okay.

[00:20:57] Speaker 04:
I'm saying here in this case, because of his insistence and his saying that he was coerced at every level,

[00:21:05] Speaker 04:
that it was not voluntary, as the court had suggested.

[00:21:08] Speaker 04:
But it also, he provided a basis for the court to exercise its discretion and say, no, I'm not going to accept your plea, because legally, you are innocent.

[00:21:18] Speaker 04:
And that should matter for the court.

[00:21:20] Speaker 01:
Counsel, so I'm hearing you say two things, and I want to talk about both of them.

[00:21:24] Speaker 01:
The first is, you seem to say that when Mr. Romero suggested that he was threatened

[00:21:35] Speaker 01:
that that undermined the mens rea element of the offense.

[00:21:39] Speaker 01:
Isn't that not the law?

[00:21:42] Speaker 01:
In other words, a duress justification doesn't undermine mens rea.

[00:21:48] Speaker 01:
It does not.

[00:21:49] Speaker 01:
So in other words, he can say he was threatened, but the factual basis for the elements of the offense remain.

[00:21:57] Speaker 01:
Do you agree with that?

[00:21:59] Speaker 01:
Yes.

[00:21:59] Speaker 01:
OK.

[00:22:00] Speaker 01:
So that's your first point, and I don't think that that has traction here.

[00:22:03] Speaker 01:
Your second point is this whole case looked at in its totality created the conditions for the district court to righteously exercise its discretion under Rule 11.

[00:22:15] Speaker 01:
Is that an argument the government is making?

[00:22:17] Speaker 01:
Yes.

[00:22:18] Speaker 01:
And why is that an availing argument in light of what the appellant has told us that

[00:22:25] Speaker 01:
Rule 11 certainly is not an all-purpose, discretion-free rule, that there have to be principled ways of exercising discretion.

[00:22:35] Speaker 01:
And here, where a factual basis is established, an affirmative defense is not established, the district court's discretion is constrained.

[00:22:43] Speaker 01:
Why is that an incorrect reading of the rule?

[00:22:46] Speaker 04:
Well, first of all, Your Honor, we're not in the Ninth Circuit, and I believe counsel had cited the Ninth Circuit case of Mancinas-Flores.

[00:22:53] Speaker 04:
But that is not just looking at it and saying, we go through the record and we pick each thing that supports our position and we ignore everything else.

[00:23:02] Speaker 04:
And in the regular case, which is not this case, where we have a plea that takes a typically 45 minutes to an hour, and the defendant goes through and he clearly admits everything, that would be sufficient.

[00:23:15] Speaker 04:
And the court couldn't say, you know, you didn't mention an affirmative defense, but I think you should, and I'm gonna send you back on your way.

[00:23:22] Speaker 04:
But here, when the court is confronted with the facts before it, and a defendant who suggests at every turn that every single act that he did was

[00:23:33] Speaker 04:
through coercion was not something he wanted to do.

[00:23:36] Speaker 04:
I think the court was required, I think the court was very thoughtful here to make sure he understood that that is in fact a legal claim of innocence, but that it could exonerate him if true.

[00:23:49] Speaker 04:
Now it turns out four and a half months later after significant litigation, that was no longer available to the defendant, but it didn't change what the court was faced with on January 12th, four and a half months prior.

[00:24:02] Speaker 04:
This was a defendant, when we're looking at this record, we can't just cherry pick the things that support and affirm the position we want to see.

[00:24:11] Speaker 01:
I'm interested more in what part of the rule we should be looking at.

[00:24:14] Speaker 01:
The record is what it is.

[00:24:15] Speaker 01:
What part of the rule of Rule 11 supports you or put differently, doesn't support Mr. Rachabeau, right?

[00:24:26] Speaker 01:
So if we were to look at Rule 11 to say, under these facts,

[00:24:32] Speaker 01:
the district court properly exercised its discretion.

[00:24:35] Speaker 01:
What portion of the rule would you point us to?

[00:24:38] Speaker 04:
Well, when looking at the rule, I would also not necessarily, perhaps the rule per se, in addition to the case law, which is the defendant does not have an absolute constitutional right to have his guilty plea accepted.

[00:24:49] Speaker 04:
And so when we're looking at this, I would suggest that in this case, this plea, the court does have discretion to reject a plea where the defendant is not convinced of his own guilt.

[00:25:01] Speaker 04:
And so I think that knowing involuntary perhaps, or the knowing angle of it, here is a defendant who was not convinced of his own guilt.

[00:25:08] Speaker 04:
And under no circumstances does the United States or court want a defendant to be entering a plea of guilty if he does not believe he is guilty.

[00:25:17] Speaker 04:
And I think that's what we had there.

[00:25:18] Speaker 02:
And I think that's what... In fact, when you look at Rule 11B2, it says before accepting a guilty plea, the court must determine

[00:25:29] Speaker 02:
that the plea is voluntary and did not result from threats.

[00:25:34] Speaker 02:
So under that express language, it seems to me that the court could not accept that plea.

[00:25:40] Speaker 04:
With respect, Your Honor, I think that part of 11B, the rule, is actually talking about that you weren't forced into actually accepting the plea.

[00:25:48] Speaker 02:
You think that is related to the plea?

[00:25:50] Speaker 02:
I think that's related to that.

[00:25:53] Speaker 02:
I agree.

[00:25:54] Speaker 02:
I see that point.

[00:25:55] Speaker 02:
It still has to be knowingly.

[00:25:57] Speaker 03:
And it's not clear that the defendant knew that the coercion he's talking about had no legal consequences.

[00:26:09] Speaker 03:
So I don't see how he could have made a knowing plea when he's claiming he was coerced into doing this, at least until he's consulted with his attorney about the possibility of a coercion.

[00:26:23] Speaker 04:
Well, she was certainly given the opportunity to do so, but I think it's more to... I'm sorry?

[00:26:30] Speaker 03:
When was the defendant given an opportunity to do it?

[00:26:33] Speaker 04:
Oh, so during the plea colloquy, when it first started and the defendant said he was ready to admit his guilt, but then he was asked whether or not he was pleading guilty because he was in fact guilty.

[00:26:42] Speaker 04:
To your point, I think is that what Rule 11 contemplates.

[00:26:45] Speaker 04:
You're pleading guilty, certainly this plea.

[00:26:48] Speaker 04:
which was not an Alford and not an Olo plea.

[00:26:50] Speaker 04:
But this plea was that you had to admit that you were guilty and that the facts were convinced you were guilty.

[00:26:56] Speaker 04:
He was not convinced he was guilty.

[00:26:58] Speaker 04:
And so if you recall in the colloquy,

[00:27:01] Speaker 04:
first after lying repeatedly and denying his involvement, right?

[00:27:05] Speaker 04:
We can't just pick what we want to see here.

[00:27:07] Speaker 04:
This was a very unusual plea and he lied about what he did and he was unwilling to admit what he did and then I was given an opportunity to ask what he meant by when he said he was only guilty in part.

[00:27:19] Speaker 04:
at which point he gave non-responsive answers and continually, in response to every question, suggested he had done everything at the hands of a violent cartel and it was involuntary.

[00:27:29] Speaker 01:
Is there a fair reading of this record that would support that when he said that he wasn't thinking about the plea, he was thinking about mitigation?

[00:27:36] Speaker 01:
I don't think that's a fair reading.

[00:27:38] Speaker 04:
Why not?

[00:27:40] Speaker 04:
I don't think it's a fair reading for several reasons because when he got, back to Judge Hart's point there where there was a break at that point when he had, in response to my questions, I'm sorry, the government's questions, he had said that he had done all of this from threats.

[00:27:55] Speaker 04:
They were threatening he would never see his niece again and he only did it under threats.

[00:28:00] Speaker 04:
We did take a break there to allow him to consult with counsel.

[00:28:04] Speaker 04:
And that was where he would discuss presumably his affirmative defense because the court said, I will not accept your plea.

[00:28:09] Speaker 04:
It sounds to me like this is an issue of involuntariness that you are being forced to do this and I will not accept your plea.

[00:28:18] Speaker 04:
And then when we came back in, if you recall, and this goes back to my waiver argument, I think there's a strong argument for waiver here.

[00:28:24] Speaker 04:
The defense, after this reset, comes back and he presents the two issues to the court, and he says, I have explained to Mr. Romero, he has two options here today.

[00:28:33] Speaker 04:
He can admit what he did was knowing and voluntary, and he did it as a favor, or he can persist in pursuing his claims that he did this under threats, and then it's a trial.

[00:28:44] Speaker 04:
And so the defendant here,

[00:28:46] Speaker 04:
then continued to say everything he had did was for threats.

[00:28:52] Speaker 04:
He was not arguing for mitigation.

[00:28:53] Speaker 04:
I don't agree.

[00:28:54] Speaker 04:
I think he and his attorney, again, another reason we give such discretion to the court because the cold record doesn't reflect what's happening in the courtroom.

[00:29:03] Speaker 04:
interaction with parties, the vibe in the courtroom, the pauses and answers.

[00:29:08] Speaker 04:
But here he is clearly, he and his attorney are not on the same page.

[00:29:12] Speaker 04:
It is clear that he wants to advance this affirmative defense.

[00:29:15] Speaker 04:
It is not for mitigation because he then goes on and then he advances it, right?

[00:29:20] Speaker 01:
Four and a half months later.

[00:29:21] Speaker 01:
What is your response to the Alford plea argument that the appellant makes that, you know, we presume that district courts understand the law.

[00:29:34] Speaker 01:
And so if the district court is exercising its discretion under that framework, certainly the district court, this very experienced judge, should have known that he did not have to do what he did here, right?

[00:29:46] Speaker 01:
That he could have accepted the plea notwithstanding protestations of innocence.

[00:29:52] Speaker 04:
And I think that would have been a different issue if he had accepted the plea.

[00:29:55] Speaker 04:
And I think back to Judge Hart's question on that, then we'd be on appeal with the argument that the court shouldn't have accepted the plea because of the affirmative defense.

[00:30:03] Speaker 04:
And the point is the discretion.

[00:30:05] Speaker 04:
The district court is there and dealing with this issue as it is happening.

[00:30:08] Speaker 04:
And it was a very thoughtful colloquy.

[00:30:11] Speaker 04:
As you can see, this court, as you mentioned, I think he's been a judge for 40 years, is very troubled by these persistent claims.

[00:30:17] Speaker 04:
The court, this is the first time he had met Mr. Romero, and so it is unfair to kind of judge this record with the benefit of hindsight.

[00:30:24] Speaker 04:
And I think the court was well within its discretion to say no, hold on, wait.

[00:30:29] Speaker 04:
And I think Mr. Romero wanted to litigate that event.

[00:30:32] Speaker 01:
It's funny that you should say hold on, because the rule would have allowed the district court to do something other than reject here.

[00:30:38] Speaker 01:
and it chose to reject.

[00:30:40] Speaker 01:
It could have deferred.

[00:30:42] Speaker 01:
And so you're here defending that decision, the decision to reject, not some other option that the court could have exercised, right?

[00:30:51] Speaker 04:
Right, absolutely.

[00:30:52] Speaker 04:
And the court was right in exercising its discretion given what was presented to the court at that time.

[00:30:58] Speaker 04:
And to be clear, I think it's important that we do talk about waiver.

[00:31:02] Speaker 04:
This was presented not as an out-for-preach, not as a NOLO plea.

[00:31:06] Speaker 04:
Nobody ever asked the court.

[00:31:08] Speaker 04:
So it's this kind of sandbag in the court to say he should have Sue Espante done that.

[00:31:11] Speaker 04:
And I think we all likely know it wasn't done because these things are very disfavored.

[00:31:16] Speaker 04:
Our office has a policy objecting to it.

[00:31:18] Speaker 04:
So I think it's very, that's probably why it wasn't given to the court as an option.

[00:31:24] Speaker 04:
But additionally, the defense counsel actually embraced what the court was saying.

[00:31:29] Speaker 04:
And so this issue is waived.

[00:31:32] Speaker 04:
in that they agreed with the court.

[00:31:35] Speaker 04:
And then we had four and a half months where it could have been corrected if this error was so clear or so plain.

[00:31:41] Speaker 04:
The defense could have corrected it and asked the court to reconsider it and they did not.

[00:31:48] Speaker 03:
When defense counsel said that defendant knows he has these two alternatives, there's no mention of an Alfred plea.

[00:31:59] Speaker 03:
No.

[00:31:59] Speaker 03:
So the defendant was not

[00:32:02] Speaker 03:
And at least defense counsel was not thinking of, well, I'm not guilty, but I might be found guilty.

[00:32:09] Speaker 03:
I'd be better off with a plea, right?

[00:32:11] Speaker 03:
Right.

[00:32:13] Speaker 04:
Yes.

[00:32:13] Speaker 04:
I mean, I think that's fair to say.

[00:32:15] Speaker 04:
And I think if I could just wrap up, I'm at the amount of time.

[00:32:20] Speaker 04:
And I would just say for this, I think his remarks there, he waived it.

[00:32:23] Speaker 04:
I think the defendant waived this by his actions later.

[00:32:26] Speaker 04:
His last statement to the court wasn't, please reconsider my plea.

[00:32:30] Speaker 04:
And now that I've lost and litigated my affirmative defense, his last request to the court was, I want a trial.

[00:32:36] Speaker 04:
And I think he has waived it.

[00:32:38] Speaker 04:
And I think under Laffer and Bonacour, which was by Judge Abel, by failing to even address Laffer and Bonacour in his opening brief, I believe defense counsel has waived the argument.

[00:32:51] Speaker 04:
And he didn't even brief plain error.

[00:32:54] Speaker 04:
So I'd ask you to exercise your discretion and not reach the merits.

[00:32:59] Speaker 04:
But if you do, I think the court should find that there was no error.

[00:33:03] Speaker 03:
Thank you, counsel.

[00:33:07] Speaker 03:
Had he gone over?

[00:33:08] Speaker 03:
He did, Judge.

[00:33:10] Speaker 03:
Well, so did she.

[00:33:11] Speaker 03:
If you want 30 seconds, I can give you, take the 30 seconds.

[00:33:16] Speaker 00:
I would love 30 seconds.

[00:33:17] Speaker 00:
Thank you, Your Honor.

[00:33:20] Speaker 00:
Really, I just want to reiterate that if this court has concerns about a defendant injecting a possible defense and the district court having some discretion to not immediately accept the guilty plea, that's not what happened here in the district.

[00:33:36] Speaker 00:
And what happened here

[00:33:37] Speaker 00:
was his own statements, the factual basis that he presented, proved that there was no affirmative defense.

[00:33:43] Speaker 00:
So that's just simply not a concern for this court right now.

[00:33:46] Speaker 00:
Thank you.

[00:33:47] Speaker 00:
Thank you, Your Honors.

[00:33:48] Speaker 03:
Thank you, Counsel.

[00:33:49] Speaker 03:
The case is submitted.

[00:33:52] Speaker 00:
Counselor, excuse me.