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 Once the district court accepts a guilty plea, the conditions under which the plea may be withdrawn are governed exclusively by Rule 11 of the Federal Rules of Criminal Procedure.1 Where a district court accepts a plea of guilty pursuant to a plea agreement,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.

I. Background.

This appeal arises because, as is commonly the case, Ellis pleaded guilty to lesser charges than those set forth in the original indictment. His plea was entered pursuant to a plea agreement governed by both Rule 11(c)(1)(A) and (C).3 The agreement specifically provided that (i) the government would not prosecute Ellis for any additional offenses known to it, i.e., the pending first degree murder charge; and (ii) if the court imposed any term of incarceration other than that agreed upon, either party could withdraw from the plea agreement.

The factual basis for Ellis's plea, as set forth in the plea agreement,4 is as follows: At approximately 7:45 p.m. on March 5, 1999, sixteen-year-old Marciano Ellis called Tacoma Yellow Cab from a payphone outside Winchell's Donut Shop in Spanaway, Washington, and requested a pick-up at a nearby tavern. Cabdriver Donald Ray Barker arrived some fifteen minutes later to pick up Ellis. As they headed through Fort Lewis, a United States Army reservation,5 Ellis, the lone passenger, shot Barker three times in the back of the head. At approximately 8:20 p.m., a passerby discovered Barker's taxicab with its headlights on in a shallow ditch alongside North Gate Road in Fort Lewis. Finding the taxicab's engine running, the passerby investigated further and discovered Barker lying on the front seat with a head wound. He summoned medical assistance. Barker was taken to the Madigan Army Hospital. The Pierce County Medical Examiner determined that Barker was killed by three gunshot wounds to the back of the head.

The government originally charged Ellis with first degree murder and moved to have him tried as an adult due to his prior state court conviction for residential burglary. See United States v. M.C.E., 232 F.3d 1252, 1257 (9th Cir.2000) (holding that Ellis's transfer to adult status was mandatory).

Over one and one-half years after the shooting, and after what both defense counsel and the prosecutor later characterized as "considerable" discussion, the government and Ellis entered into a plea agreement providing that Ellis would plead guilty to a Superseding Information charging him with second degree murder. The agreement recognized that the court could impose any sentence authorized by law, but provided that either party had the right to withdraw from it if the court pronounced a sentence of incarceration other than 132 months. The parties also agreed that Ellis would not be allowed to withdraw his plea of guilty to the second degree murder charge in the Superseding Information "unless that sentence is other than 132 months of imprisonment."

On December 8, 2000, Ellis, having waived indictment by a grand jury, entered a plea of guilty to the second degree murder charge set forth in the Superseding Information. During the Rule 11 plea colloquy, the district court inquired of Ellis whether he understood that the court could depart upward or downward upon consideration of all applicable sentencing guidelines. When Ellis hesitated in his response, his attorney attempted to explain to the court that a specific sentence had been provided in the plea agreement, which would be binding once accepted by the court pursuant to Rule 11. The court responded, "Well, I haven't accepted anything yet." The court proceeded with the remainder of the colloquy, took Ellis's plea, set a sentencing date, and ordered a presentence report.

At the outset of the April 17 sentencing hearing, the district court announced that it would not accept the plea agreement:

I think I should tell you now, I'm not going to accept it. I've read the government's Sentencing Memorandum and the [probation officer's] recommendation. I can't accept it.

The presentence report had disclosed three prior juvenile adjudications and seven other arrests and charges for serious crimes. It also revealed that the FBI had developed a somewhat solid case against Ellis for premeditated murder, proof of which would support a first degree murder charge. This evidence included a wire-tapped conversation with an informant in which Ellis admitted the planning and murder of the taxicab driver. The United States Probation Officer recommended 151 months' incarceration, the maximum sentence for second degree murder under the Sentencing Guidelines. The Officer acknowledged that if the court were to impose 151 months' custody, Ellis would be allowed to withdraw from the plea agreement, but felt that "given the circumstances of this case" he could recommend no less.

The district court allowed argument, during which the government urged it to accept the plea agreement. The government specifically noted that the victim's family supported the plea agreement and that it was concerned about the evidence available to prove beyond a reasonable doubt the elements of the first degree charge.6 The court nevertheless concluded:

I have read the government's Sentencing Memorandum, together with the Defendant's Sentencing Memorandum, and I have listened to the government and the Defendant. I must tell you, justice in my opinion hasn't been done in this case, the way it stands now. I think the matter should go to a jury. I think the matter should go to a jury, period. So the ball is back in the government's court.

The court immediately arraigned Ellis on the still pending first degree murder indictment.7 Ellis pleaded "not guilty" to that charge, and the court set the date for jury trial.

Ellis then moved to compel the district court to afford him the opportunity to withdraw his second degree murder guilty plea or to allow him to persist in that plea, citing former Rule 11(e)(4) and United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997). He asserted his absolute right to persist in that plea and indicated his intent to do so. In response, the government indicated it remained "willing to proceed with the second degree murder disposition."8

Attempting to glean from the transcript of the hearing on Ellis's motion an understanding of what actually transpired next is a bit like peering into an ever-shifting kaleidoscope. The district court first treated the government's position that Ellis had the right to persist in his guilty plea as a "motion to ask the court to reconsider the court's denial of the plea in this case." The court denied that motion. Next, asking the government attorney "do you represent the defendant," the district court refused to follow the government's suggestion to inquire of Ellis whether, if given the opportunity, he would persist in his plea of guilty, stating:

[W]hat we know now from the record is this court has rejected the defendant's attempt to plea.

The district court next refused to hear argument on Ellis's motion (the very reason for the hearing in the first place), stating:

I assume your motion, then, is as to ... rejection of the plea agreement.... It is the court's position, and the record reflects, that I never intended to accept the plea agreement in this case, nor did I accept the plea in this case.

As far as this court is concerned, the question of the rejection of the plea agreement is not an issue. I never accepted it.

In a last-ditch effort to salvage the proceedings, the Assistant United States Attorney ("AUSA") asked the court to "put aside what occurred on December 8 [entry of the plea] and to start anew" by allowing the parties to enter into a new plea agreement pursuant to Rule 11 under which Ellis would plead guilty anew to second degree murder charges. In response, the district court stated:

Your offer, the defendant and defendant's counsel, for this court to proceed in any way under any circumstances in any plea agreements or any pleas is rejected and denied by this court.

Nor would the court allow defense counsel to state for the record whether Ellis desired to enter the new plea pursuant to the newly proposed plea agreement or to allow the parties to file the new plea agreement.

With his only alternative being proceeding to trial on a first degree murder charge — a case even the government no longer desired to charge and was not sure it could prove — Ellis filed this petition for writ of mandamus, which the government did not oppose. Respondent, the district court, opposed the petition, asserting that it had never accepted Ellis's guilty plea because it did not find a factual basis for the second degree murder charge. A three-judge panel concluded that (i) Ellis in fact had entered a plea of guilty to second degree murder, and (ii) the district court had vacated the guilty plea upon rejecting the plea agreement. It held this procedure to be proper under Rule 11. See Ellis v. United States Dist. Court (In re Ellis), 294 F.3d 1094, 1099-1100 (9th Cir.2002), withdrawn, 313 F.3d 1094 (9th Cir.2002).

II. Rejection of the Plea Agreement.

When the district court rejected the plea agreement, having previously accepted Ellis's plea, a number of options became available. The option the district court chose — injecting itself into the charging decision by vacating the plea and requiring Ellis to plead to higher charges — was not one of them.

A. Acceptance of the second degree guilty plea.

There can be no dispute that the district court accepted Ellis's guilty plea to second degree murder and deferred acceptance of the plea agreement. At the plea colloquy, the district court made the necessary Rule 11 inquiries and took Ellis's plea:

THE COURT: Mr. Ellis, what is your plea, guilty or not guilty?

THE DEFENDANT: I plead guilty, Your Honor.

THE COURT: Okay. I find that you knowingly and intelligently waived your rights to have this matter presented to a Grand Jury. And you know your rights to a jury trial. And you know your rights to appeal. You know the maximum possible punishment.

* * *

THE COURT: What is the sentencing date?

MADAM CLERK: March 16th, 2001.

THE COURT: March 16th, 2001.

MADAM CLERK: 9:30.

THE COURT: 9:30 a.m. or as soon thereafter as the Court may be heard. And there will be a presentence report by a probation officer.

The Criminal Minutes of the December 8, 2000 proceedings accurately reflect that Ellis entered a guilty plea to the Superseding Information that day, and that the plea agreement was filed:

Court signs WAIVER OF INDICT. Def sworn, ent plea of GUILTY to SS info. Sent set for 3/16/01 at 9:30. Plea agreement filed. File UNSEALED

At sentencing, which had been continued to April 17, 2001, the district court indicated that it had reviewed the Ellis presentence report, which it would not have been entitled to do, absent Ellis's written consent, unless Ellis's plea had been accepted. Rule 32 provides that

[u]nless the defendant has consented in writing, the probation officer must not submit a presentence report to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has been found guilty.

Fed.R.Crim.P. 32(e)(1).9 Disclosure of the presentence report "to the judge who will pronounce the defendant's guilt or innocence or who will preside over a jury trial would seriously contravene [Rule 32's] purpose of preventing possible prejudice from premature submission of the presentence report." Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969); see also United States v. Cordova-Perez, 65 F.3d 1552, 1555 (9th Cir.1995); United States v. Park, 521 F.2d 1381, 1382-83 (9th Cir.1975) (per curiam) (holding that violation of Rule 32 compels reversal).

Our conclusion that the district court accepted Ellis's guilty plea on December 8, 2000, accords with that of the three-judge panel that previously reviewed the record. That panel also found that Ellis's guilty plea to second degree murder had been accepted.

Respondent maintains that because it did not explicitly make a factual basis determination on the record during the plea colloquy pursuant to Rule 11(b)(3), the plea itself was not accepted. Rule 11(b)(3) "requires the court to explore the factual basis in order to determine the accuracy of the plea" but "prescribes no specific method" for doing so. United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir.1983) (construing former Rule 11(f)'s factual basis requirement). There is no requirement of an express finding of a factual basis during the plea colloquy, in contrast to the requirements of Rule 11(b)(1). Rather, "it must be established on the record that there is sufficient evidence to support the conclusion that the defendant is guilty," id., and the court must make the determination "[b]efore entering judgment." Fed. R.Crim.P. 11(b)(3). The plain language of this subdivision does not speak to acceptance of the plea.

In any event, reviewing the plea colloquy de novo, see United States v. Gaither, 245 F.3d 1064, 1068 (9th Cir.2001), we have no doubt that a factual basis supported Ellis's plea, and conclude that the district court implicitly so found at the time. During the plea colloquy the court asked the AUSA to "make a factual recitation to the Court" and instructed Ellis to "listen real closely." The AUSA then recited the stipulated statement of facts from the plea agreement, which provided the factual basis for the plea. The court next explored at length the factual statement, asking Ellis, among other things, whether he "d[id] those things" of his own free and voluntary will. The court requested a copy of the plea agreement and asked Ellis to review the stipulated statement of facts, instructing him to read the precise statement again. After Ellis read the specified paragraphs, the court asked, "Do you hereby accept and agree that it's your statement here today?" to which Ellis responded, "Yes, your Honor, I do."

The stipulated statement of facts, in which Ellis admitted he was the sole passenger in Mr. Barker's taxicab and killed him "with malice aforethought" by shooting him three times in the head, is ample evidence of Ellis's guilt. The district court did everything required of it under our precedent. Indeed, immediately upon completion of its examination of Ellis concerning his admissions in the statement of facts, the court asked, "Mr. Ellis, what is your plea, guilty or not guilty?" The conclusion is inescapable that the district court implicitly found a factual basis and then proceeded toward acceptance of the plea.

We reject the pre-Hyde view espoused in cases such as Cordova-Perez, 65 F.3d at 1555, that an acceptance of a guilty plea is "impliedly contingent" on the district court's review of the presentence report. In Cordova-Perez, as here, the defendant pleaded guilty to lesser charges in a separate information and, in a change of plea hearing, the court accepted the guilty plea, ordered a presentence report, and set the sentencing date. Following review of the presentence report, the court concluded that the terms of the agreement inadequately reflected the seriousness of the actual offense conduct and was contrary to the public interest. It then did exactly what the district court did here — it rejected the plea agreement, reinstated the original indictment and set the matter for trial.

Reasoning that "[t]he plea agreement and the plea are `inextricably bound up together' such that deferment of the decision whether to accept the plea agreement carried with it postponement of the decision whether to accept the plea," we held that by "necessary implication" the acceptance of the guilty plea was contingent upon acceptance of the plea agreement. Id. at 1556. Because the Supreme Court expressly rejected this rationale in Hyde, 520 U.S. at 677-78, 117 S.Ct. 1630, Cordova-Perez is no longer good law.10

B. Rejection of the plea agreement.

Although it accepted Ellis's guilty plea, the district court remained free to reject the plea agreement, including the provision for a 132-month sentence. The plain text of Rule 11 compels distinct treatment of the plea agreement and the plea itself, as the Supreme Court concluded in Hyde, 520 U.S. at 674, 117 S.Ct. 1630.

While it is true that the precise rule examined in Hyde was former Rule 32(e), the Court's holding was predicated on its analysis of Rule 11, as the "principal provision in the Federal Rules of Criminal Procedure dealing with the subject of guilty pleas and plea agreements." Id. at 673-74, 117 S.Ct. 1630. Hyde, like Ellis, had pleaded guilty pursuant to a plea agreement. The district court accepted the plea, but deferred decision on the plea agreement. We relied on the "inextricably bound" rationale of Cordova-Perez to conclude that if the court defers acceptance of the plea agreement, the defendant could withdraw his plea "for any reason or for no reason," United States v. Hyde, 82 F.3d 319, 321 (9th Cir.1996), rev'd, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997), until both the plea and the agreement are accepted.

The Supreme Court rejected our equation of "acceptance of the guilty plea with acceptance of the plea agreement, and deferral of the plea agreement with deferral of the guilty plea":

Nothing in the text of Rule 11 supports these conclusions. In fact, the text shows that the opposite is true: Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time.

Hyde, 520 U.S. at 674, 117 S.Ct. 1630.

Once the district court rejects a plea agreement, Rule 11 sets forth the procedure that the court must follow. As the Hyde Court recognized, "[i]f the court had decided to reject the plea agreement, it would have turned to [former] subdivision (e)(4) of Rule 11." Id. at 675, 117 S.Ct. 1630.

It is worth stepping back to examine the structure of Rule 11 as an aid to understanding its orderly application to the plea and plea agreement procedures. The process entails entering a plea, governed by subsection (a). Next, as set forth in subsection (b), there exist certain prerequisites with which the court must comply during the process of considering and accepting a plea of guilty or nolo contendere. Rule 11(c)11 then describes the procedures governing plea agreements, including the procedure for reaching a plea agreement, the types of agreements that the government may make12 and disclosure of the agreement. Most important, for our purposes, are the provisions contained in subsections (c)(3)(A) and (c)(5). The former provides that when considering a Rule 11(c)(1)(A) or (C) type plea agreement, the court has three options: it may "accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report." Fed. R.Crim.P. 11(c)(3)(A). If, however, the court rejects a Rule 11(c)(1)(A) or (C) plea agreement, Rule 11(c)(5) dictates the procedures to be followed:

[T]he court must do the following on the record and in open court (or, for good cause, in camera):

(A) inform the parties that the court rejects the plea agreement;

(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and

(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.

Fed.R.Crim.P. 11(c)(5). Rule 11 thus contemplates that the district court's rejection of a plea agreement allows the defendant, not the court, to make the next decision with respect to the status of the plea — i.e., whether to withdraw the plea and proceed to trial, or persist in the plea and risk a more severe sentence under the Sentencing Guidelines.

"Plea agreements are contractual by nature and are measured by contract law standards." United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.2002). The Rules of Criminal Procedure

explicitly envision a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side.... If the court accepts the agreement and thus the Government's promised performance, then the contemplated agreement is complete and the defendant gets the benefit of his bargain. But if the court rejects the Government's promised performance, then the [plea] agreement is terminated and the defendant has the right to back out of his promised performance (the guilty plea), just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent.

Hyde, 520 U.S. at 677-78, 117 S.Ct. 1630.

Consistent with these contractual principles, Rule 11 states that upon rejection of the plea agreement, the defendant may withdraw his plea. The only course available for the district court, upon rejecting the plea agreement, is to advise the defendant of his rights, including the right to withdraw the guilty plea. See United States v. Reyes, 313 F.3d 1152, 1156 (9th Cir.2002) ("[T]he options for the district court were either to accept the plea agreements and sentence the defendants accordingly or to reject the agreements and allow the defendants to withdraw their pleas."); United States v. Fernandez, 960 F.2d 771, 773 (9th Cir.1992) (holding that the "district court erred by failing to either accept the plea agreement and sentence [the defendant] accordingly or to reject the plea agreement and allow [him] to withdraw his guilty plea"). And should the defendant decide to maintain his plea of guilty, the court "may dispose of the case less favorably toward the defendant than the plea agreement contemplated." Fed.R.Crim.P. 11(c)(5)(C); see also United States v. Serrano, 938 F.2d 1058, 1061 (9th Cir.1991) ("[I]f the district court accepted the sentence term, it must resentence[the defendant] in accordance with the plea agreement.... If, on the other hand, the court rejected the sentence term, it should have informed [the defendant] of its decision and afforded him an opportunity to withdraw his plea."); 5 Wayne R. LaFave et al., Criminal Procedure § 21.4(g) (1999) (recognizing that if district court imposes sentence higher than that contemplated in type (C) plea agreement, defendant must be given opportunity to withdraw plea).

When his plea agreement was rejected, it became Ellis's choice whether to: (i) stand by his plea and face a sentence at the highest end of the applicable guidelines range (151 months) or an upward departure to as much as a life term;13 (ii) withdraw his plea and attempt to renegotiate a new plea agreement without a stipulated sentence ceiling; or (iii) withdraw his plea and take his chances at trial on the first degree murder charge. Nowhere does Rule 11 provide that the district court may dictate this choice.

The Kleinfeld dissent asserts that in so holding we create a conflict with two cases from other circuits, each of which predates the Supreme Court's decision in Hyde where the Court clearly rejected the notion that the plea and the plea agreement were bound up together. See Hyde, 520 U.S. at 674, 117 S.Ct. 1630. Both the Fifth Circuit's decision in United States v. Foy, 28 F.3d 464 (5th Cir.1994), and the Tenth's in United States v. Carrigan, 778 F.2d 1454 (10th Cir.1985), could not have taken Hyde's teachings into account, given that they predate that opinion. In any event, both are readily distinguishable.

The Foy court expressly declined to decide the issue that is before us, finding only that "if the district court erred at all [with regard to its initial acceptance and later rejection of the plea] the error was not `plain.'" Foy, 28 F.3d at 471. Moreover, Foy explicitly acknowledged that the approach that we advance today is "the better practice" for district courts to follow when accepting pleas. Id.

Nor does our holding present a conflict with Carrigan. That, of course, would be impossible because in Carrigan, the defendant never entered and the district court never accepted a guilty plea. 778 F.2d at 1459. Thus, the Rule 11 provisions that we address here were not implicated in Carrigan.14 Again, the Kleinfeld dissent's persistence in seeing a conflict where none exists is a result of its refusal to distinguish the plea from the plea bargain. Nor does Carrigan's ratio decidendi, as described by the Kleinfeld dissent in support of a so-called "conflict" — that the "ultimate effect of the dismissal of charges ... under the plea bargain was to restrict the district court's ability to impose what it considered an appropriate sentence," id. at 1464, — present itself in this case. The district court here was free to, and in fact did, reject the proposed plea agreement because it did not believe the guidelines sentence supported by the negotiated charge was adequate to serve the public interest. Even if Ellis had persisted in his plea to the second degree charge, the district court's discretion to depart upward to a life sentence was unrestricted. Thus, under our analysis the court's sentencing function is unrestricted — what is precluded is the court's participation in the plea negotiations themselves, see Rule 11(c)(1),15 and, as discussed below, the district court's intrusion into the function of the executive branch.

C. Separation of powers.

While the district court did not violate Rule 11's proscription against participating in plea negotiations, it effectively and improperly inserted itself into the charging decision by vacating Ellis's plea and reinstating the first degree murder indictment. The procedures contemplated by Rule 11 guard against an intrusion of this nature into the separate powers of the executive branch. See United States v. Miller, 722 F.2d 562, 565 (9th Cir.1983). As we explained in Miller:

When a prosecutor selects a charge, he has made an executive choice. When a judge sentences a defendant, he has made a judicial choice. When a plea bargain is placed before a court, the necessary interplay between charging and sentencing decisions becomes manifest.

Id. at 564. The plea agreement placed before the district court here specified both a reduced charge and the sentence, thus implicating both judicial and executive decisionmaking.

The district court viewed the sentence resulting from Ellis's plea bargain as not in the best interest of society, given Ellis's criminal history and the circumstances of the offense charged. This was a judgment properly within the judicial function. It is also a function protected by Rule 11's provision for the rejection of a negotiated plea agreement when the court believes a sentence is too lenient or otherwise not in the public interest. Id. at 563. But when the district court made the further decision that the second degree murder charge itself was too lenient, it intruded into the charging decision, a function "generally within the prosecutor's exclusive domain." Id. at 565. Because the prosecutor represents the executive branch, the district court's reinstatement of the first degree murder charge over the government's objection disregarded the traditional requirement of separation of powers — that the "judiciary remain independent of executive affairs." Id. The district court's decision forced the government to prepare to try Ellis on a charge it did not want to bring, on evidence it considered problematic, and in a procedural posture questionable due to Ellis's prior juvenile status and transfer proceedings.

Rule 48 also recognizes the traditional balance between judicial and executive power by limiting the district court's supervisory powers over prosecutorial charging decisions. Under Rule 48, courts must grant leave to the government to dismiss an indictment, information, or complaint unless dismissal is "clearly contrary to manifest public interest." Rinaldi v. United States, 434 U.S. 22, 30, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) (per curiam); United States v. Garcia-Valenzuela, 232 F.3d 1003, 1008 (9th Cir.2000) (discussing the "clearly contrary to manifest public interest" standard). "The decision to dismiss an indictment implicates concerns that the Executive is uniquely suited to evaluate, and a district court should be reluctant to deny its request." United States v. Gonzalez, 58 F.3d 459, 462 (9th Cir.1995).

In Miller, we noted that "[m]any of the policies underlying Rule 48 are equally applicable to judicial consideration of charge bargains." 722 F.2d at 566. "[C]ourts should be wary of second-guessing prosecutorial choices" because "[c]ourts do not know which charges are best initiated at which time, which allocation of prosecutorial resources is most efficient, or the relative strengths of various cases and charges." Id. at 565; see also United States v. Ammidown, 497 F.2d 615, 622 (D.C.Cir.1973) ("In ordinary circumstances, the change in grading of an offense presents no question of the kind of action that is reserved for the judiciary."). By requiring the reinstatement of the first degree murder charge, the district court overstepped its judicial bounds.

III. Mandamus.

Mandamus is the appropriate remedy. The district court clearly erred in vacating Ellis's plea. Substantial prejudice would result to him, the government, and the judicial system by requiring all to proceed through trial on first degree murder charges before the district court's error could be remedied on direct appeal. We have authority to issue writs of mandamus under the All Writs Act, 28 U.S.C. § 1651, which provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

The writ of mandamus is "an extraordinary remedy that may be obtained only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 998 (9th Cir.2003); see also Bauman v. United States Dist. Court, 557 F.2d 650, 654-55 (9th Cir.1977) (identifying five factors for exercise of discretion to grant mandamus). Three of the five Bauman factors — lack of alternative adequate means of redress, prejudice uncorrectable on appeal, and a clearly erroneous district court order — are present here, and weigh heavily in favor of granting the petition. See Cordoza, 320 F.3d at 998 ("We address the [clear error] factor first, because the others are irrelevant if the district court's conclusions were legally correct."); Credit Suisse v. United States Dist. Court, 130 F.3d 1342, 1345-46 (9th Cir.1997) (granting writ because district court's decision was not "immediately reviewable," was prejudicial in a manner not correctable on appeal, and constituted clear error); In re Cement Antitrust Litig., 688 F.2d 1297, 1301 (9th Cir.1982) (noting that first two Bauman factors, lack of adequate means of redress and uncorrectable prejudice, "are designed to insure that mandamus, rather than some other form of relief, is the appropriate remedy").

The uncorrectable prejudice arising from the district court's refusal to proceed on the second degree murder charge is evident from a consideration of the possible outcome of a trial on the first degree charge, were we to deny mandamus relief. If the jury acquitted the defendant, a result the government has determined is reasonably possible, Ellis would go free because he would not, under the district court's ruling, have pleaded guilty to the second degree charge, and could not be tried on that charge. See, e.g., Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ("[T]he Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense."). Had the jury, instead, returned a verdict of guilt on the first degree charge, Ellis would have irreparably suffered the prejudice of the additional, and unnecessary, financial and emotional burden of having to stand trial. See Arizona v. Washington, 434 U.S. 497, 503-05, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

IV. Remand.

Ellis has requested that the case be assigned to a different judge on remand. We make two inquiries when deciding whether to reassign a case. "First, we ask whether the district court has exhibited personal bias requiring recusal from a case." United Nat'l Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1118 (9th Cir. 2001) (citing United States v. Sears, Roebuck & Co., 785 F.2d 777, 779-80 (9th Cir.1986)). Nothing in the record reflects such personal bias.

Second, in the absence of a showing of personal bias, we look to whether "unusual circumstances" warrant reassignment. Id. (citing Sears, Roebuck, 785 F.2d at 780). This inquiry focuses on three factors: "(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness." Id. at 1118-19. Only one of the first two factors must be present to support reassignment. See United States v. Mikaelian, 168 F.3d 380, 388 (9th Cir. 1999).

The district judge has read the presentence report and has expressed strong views on its contents. Whether or not he would reasonably be expected to put out of his mind the information previously disclosed or the conclusions previously drawn, and without ourselves reaching any determination as to his ability to proceed impartially, to preserve the appearance of justice, and consistent with the purposes of Rule 32, we conclude reassignment is appropriate. See Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969) (noting that to allow submission of a presentence report "to the judge who will ... preside over a jury trial would seriously contravene ... [Rule 32's] purpose of preventing possible prejudice from premature submission of the presentence report"). Given the preliminary nature of the plea proceedings, the minimal potential for waste or duplication of judicial resources is outweighed by the need to proceed in a manner that preserves the appearance of justice. Therefore, on remand, the case shall be reassigned to a different district judge within the Western District of Washington.

V. Conclusion.

We GRANT the petition for mandamus and REMAND to the Chief Judge of the Western District of Washington for further proceedings consistent with this opinion.

I join Judge Wardlaw's excellent opinion in full and parts III, IV and V of Judge Trott's fine concurrence. I write separately 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 at all. A guilty plea is a singular event in the course of a criminal prosecution, quite different from routine matters such as the setting of a trial date or a briefing schedule. A guilty plea is an adjudication of guilt, a waiver of defendant's rights to a trial, to a jury, to stand mute and to have the prosecution prove its case beyond a reasonable doubt. See Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927) ("A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence."). Not surprisingly, the Federal Rules of Criminal Procedure devote considerable attention to the process, specifying how the plea is to be taken, when and under what circumstances it may be withdrawn and what use may be made of the various communications relating to pleas and plea bargains. Fed.R.Crim.P. 11. Conspicuously absent from these comprehensive procedures is anything authorizing the district court to vacate a properly accepted guilty plea without defendant's consent. See United States v. Partida-Parra, 859 F.2d 629, 631-33 (9th Cir.1988).

The dissent concedes this absence of express authority, but argues that we must infer such authority in order to harmonize Rule 11 with Rule 32 and United States Sentencing Commission Guidelines Manual § 6B1. The argument holds no water. The interplay between Rule 11 and Rule 32 leads to precisely the opposite result from that urged by the dissent. Rule 32 provides that the district court may not, absent defendant's written consent, review the presentence report before defendant has pleaded guilty (or nolo) or been convicted at trial. Fed.R.Crim.P. 32(e)(1). This means that, unless defendant agrees, the district court may not consider the contents of the report in deciding whether to accept the plea. Yet, if the district court reviews the presentence report and then vacates the plea based on information in the report, it will have done precisely what Rule 32(e)(1) prohibits — seen the presentence report of a defendant whose guilt has not yet been adjudicated. Based on this straight-forward logic, three circuits, including our own, have held that the district court may not vacate a guilty plea based on information in the presentence report. See Partida-Parra, 859 F.2d at 632-33; United States v. Cruz, 709 F.2d 111, 114-15 (1st Cir.1983), overruled in irrelevant part by United States v. Santiago Soto, 825 F.2d 616 (1st Cir.1987); United States v. Blackwell, 694 F.2d 1325, 1339 (D.C.Cir.1982). Far from supporting the dissent's argument, the interplay between Rules 11 and 32 sinks it.

In a paragraph unencumbered by citation of authority, the dissent offers three reasons we needn't worry about Rule 32's categorical prohibition. First, in the dissent's view, "defendant's protection is not so absolute," because, if defendant chooses to withdraw his plea after the district court rejects the plea bargain, defendant will then be tried before a judge who has read the report. Kleinfeld Dissent at 1234-1235. Nice try. That the judge may preside over a criminal trial after he has read the presentence report in circumstances authorized by the rule is no argument whatsoever for ignoring the rule's prohibition in circumstances where it is expressly applicable. That the rule treats the two situations differently calls on us to respect the distinction, not ignore it.

The dissent's other reasons are less persuasive still: "Second, most criminal cases are tried to juries, and the jury does not see the presentence report. Third, if the judge feels that his ability to be impartial has been compromised by his knowledge of the presentence report, he must recuse himself." Id. at 1234-1235. These so-called reasons run smack-dab into the Supreme Court's ruling in Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969). The Court there said:

Rule 32 is explicit. It asserts that the "report shall not be submitted to the court ... unless the defendant has pleaded guilty or has been found guilty." This language clearly permits the preparation of a presentence report before guilty plea or conviction but it is equally clear that the report must not, under any circumstances, be "submitted to the court" before the defendant pleads guilty or is convicted. Submission of the report to the court before that point constitutes error of the clearest kind.

Moreover, the rule must not be taken lightly. Presentence reports are documents which the rule does not make available to the defendant as a matter of right. There are no formal limitations on their contents, and they may rest on hearsay and contain information bearing no relation whatever to the crime with which the defendant is charged. To permit the ex parte introduction of this sort of material to the judge who will pronounce the defendant's guilt or innocence or who will preside over a jury trial would seriously contravene the rule's purpose of preventing possible prejudice from premature submission of the presentence report. No trial judge, therefore, should examine the report while the jury is deliberating since he may be called upon to give further instructions or answer inquiries from the jury, in which event there would be the possibility of prejudice which Rule 32 intended to avoid. Although the judge may have that information at his disposal in order to give a defendant a sentence suited to his particular character and potential for rehabilitation, there is no reason for him to see the document until the occasion to sentence arises, and under the rule he must not do so.

Id. at 491-92, 89 S.Ct. 1134 (footnote omitted) (emphasis added). Gregg holds quite clearly that Rule 32's prohibition applies even when the case is tried to a jury and explains precisely why. Moreover, the Court emphasized that non-compliance with Rule 32 is "error of the clearest kind," id. at 492, 89 S.Ct. 1134; it did not rely, as does the dissent, on some nonspecific duty of the judge to recuse himself if he no longer feels impartial.

Nor does Guidelines Manual § 6B1 help the dissent. This is so for three independent reasons, each sufficient to refute the dissent's position. The dissent's Guidelines Manual argument goes like this: Section 6B1 directs district courts to withhold approval of charge bargains — plea bargains where the prosecution agrees to drop certain charges in exchange for defendant's guilty plea on other charges — unless "the remaining charges adequately reflect the seriousness of the actual offense behavior," id., which the district judge might only know for sure after he reads the presentence report. But Rule 32 precludes the district court from seeing the report, unless defendant first pleads guilty. According to the dissent, this creates a catch-22: The judge must first accept a guilty plea in order to see the report (to satisfy Rule 32), but he then can't reject the charge bargain based on what he reads in the report (as instructed by Guidelines Manual § 6B1) — unless he can vacate the plea.

The first fallacy of this reasoning should be apparent from the text of Rule 32. As the dissent recognizes, accepting a guilty plea is not the only way the district court can see the presentence report; the court may also see it with defendant's written consent. Fed.R.Crim.P. 32(e)(1). Nothing precludes the court from withholding its approval of the plea, and the plea bargain, until it first sees the presentence report. Defendant has no right to have the plea accepted. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). If the district court insists on seeing the presentence report before accepting the plea, defendant can choose whether to agree in writing or have the court reject it outright. If defendant doesn't agree, the court can reject the plea and the plea bargain; if he agrees, the court can then satisfy Rules 11 and 32, as well as Guidelines Manual § 6B1. The district court can also insist that, as part of its recitation supporting the plea, the government disclose the nuts and bolts of its case. Based on this information, the district court can decide whether to accept the plea at once or defer it until after the presentence report is prepared. The short of it is that there's no conflict between these provisions, no catch 22 and no need to arrogate the power to vacate a plea that the dissent agitates for.

But even if there were a conflict between the Federal Rules of Criminal Procedure and Guidelines Manual § 6B1, the Rules of Criminal Procedure would trump. As the dissent grudgingly recognizes, section 6B1 is not a sentencing guideline; it is a free-standing policy statement. Only actual guidelines, and their applicable commentary and policy statements, are binding. See Stinson v. United States, 508 U.S. 36, 42-43, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); Williams v. United States, 503 U.S. 193, 201, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). Section 6B1 is in Chapter Six of the Guidelines Manual. That chapter is made up entirely of policy statements and their commentary; it contains no guidelines. While there is no case law dealing with the status of Chapter Six policy statements, no fewer than ten circuits, including our own, have held that the highly analogous policy statements in Chapter Seven (dealing with violations of probation and supervised release) were not guidelines and therefore were not binding. See United States v. Forrester, 19 F.3d 482, 484 (9th Cir.1994), superseded by statute; United States v. Sparks, 19 F.3d 1099, 1101-02 & n. 3 (6th Cir.1994); United States v. Anderson, 15 F.3d 278, 283-84 (2d Cir.1994); United States v. O'Neil, 11 F.3d 292, 301 n. 11 (1st Cir.1993); United States v. Levi, 2 F.3d 842, 845 (8th Cir. 1993); United States v. Hooker, 993 F.2d 898, 900-01 (D.C.Cir.1993); United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992) (per curiam); United States v. Headrick, 963 F.2d 777, 782 (5th Cir.1992); United States v. Lee, 957 F.2d 770, 773 (10th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.1991); see also United States v. Cade, 279 F.3d 265, 270 n. 2 (5th Cir.2002) ("We have held ... that some policy statements are advisory only."). There is no plausible argument that Chapter Six policy statements are binding, and the dissent doesn't even try to make one. Because section 6B1 is hortatory, while Rules 11 and 32 are mandatory, any conflict between the rules and 6B1 would have to be resolved in favor of the rules.

Finally, Guidelines Manual § 6B1 can't even be used as an aid to interpreting Rule 11 for the obvious reason that it came along many years after the rule, and was drafted by a wholly different body. Interpretation, to be worthy of the name, must be a sincere effort to ascertain the meaning that the drafters of the text were seeking to capture, not an expense-paid shopping-spree through the bazaar of all conceivable meanings, rummaging for the one we like best. Our inquiry is generally limited to the document's language though, on occasion, we do take a peek at drafting history and other such contemporaneous materials. Under no stretch of the imagination, however, can we figure out what the document means by looking at things said and written by a different entity many years later. To allow for this possibility would mean that Rule 11 would have had one meaning from 1974 to 1987, and then changed meanings abruptly upon adoption of Guidelines Manual § 6B1, as if by induction. Strict construction this ain't. The most one could say about the interplay between Rule 11 and Policy Statement 6B1 is that, when the Sentencing Commission drafted its Manual, it may not have focused on Rule 32 as interpreted by Gregg, and thus encouraged district courts to do something that's a bit awkward under the Rules of Criminal Procedure. Certainly, no one can claim with a straight face that Rules 11 and 32 were drafted to conform with the not-yet-in-existence Guidelines Manual § 6B1.

It is thus perfectly clear that section 6B1 cannot do the heavy lifting the dissent asks of it, first because it does not contradict Rules 11 and 32 and, even if it did, because it would have to yield to the logic of those provisions, which (for reasons already explained) precludes the district court from vacating a guilty plea based on a presentence report it was not authorized to see before approving the plea.

In the end, nothing is left of the dissent except strongly voiced policy preferences that judges, not prosecutors, have the final say in charge bargains. In explicating this view, the dissent unfairly impugns the prosecutor's courage and professionalism by insinuating he was too chicken or lazy to go to trial. Kleinfeld Dissent at 1240-1241. The government's sentencing memorandum paints the very different picture of a realistic prosecutor, aware of the strengths and weaknesses of his own case and alive to the subtle nuances of a tragic and difficult situation:

In fact, there is much about the crime that is abhorrent. The victim, Donald Ray Barker, is the epitome of the unfortunate soul in the wrong place at the wrong time. As far as anyone knows, he did nothing more on March 5, 1999, than pick up the defendant as the last fare of his life. Minutes later, he was shot three times in the back of the head.

On the other hand, there is much about the defendant that also is fairly characterized as most unfortunate. At the time that he shot Mr. Barker, he was approximately 16 ½ years old. He lived in an environment with minimal, if any, structure. For many years before the murder, he had had no meaningful contact with his father who lives in the East Coast. Moreover, he received virtually no supervision from his mother who, it appears, was aware of his drug use, and, indeed, aware of his possession of the handgun that was used in the shooting.

Neither the defendant nor any of his associates attended school regularly and most didn't attend at all. Their days were indistinguishable, one from the next, and consisted primarily of sleeping, eating junk food, hanging out at one apartment or another, playing video games, using alcohol and drugs, engaging in sexual activities, and, perhaps most significantly, attempting to be "tough" or "cool." Thus, for weeks before the shooting, the defendant carried in his jacket pocket, and proudly displayed to one and all, the handgun which his friend Deborah Galvan had purchased for him. To add to his "mystique," the defendant repeatedly bragged about his criminal prowess, often claiming to have committed crimes for which he was not responsible.

Murder is a heinous crime, and this one is, in many ways, particularly troubling. Even acknowledging this, however, there are logical reasons for the Court to accept the Plea Agreement in this instance and to sentence the defendant to the stipulated term of imprisonment agreed to by the parties. First, the defendant was quite young at the time of the offense and his criminal record before this act was limited to a single violent crime, a residential burglary committed approximately 1 ½ years earlier. Many other second degree murder convictions involve defendants who are significantly older with substantially more serious criminal records. Thus, a sentence in the middle of the range is not unreasonable under the circumstances.

Second, the evidence is consistent with the crime of second degree murder. There are no eye witnesses to the actual shooting and no clear picture of what occurred inside the taxicab. Nor is there clear evidence that on the day of the shooting, the defendant was actually planning the criminal conduct.1 Instead, witnesses recalled talking to the defendant during the day about a birthday party which they urged him to attend at a Lakewood house in the neighborhood from which the defendant and his mother had recently moved away. When the defendant eventually arrived at the party that night, his accounts of the shooting were quite varied. For example, he told one friend that he had panicked when he thought the driver had locked him in the taxicab. If believed, this explanation is arguably inconsistent with the concept of premeditation. On another occasion, the defendant claimed that he shot the taxicab driver after the driver had laughed at him. Perhaps all that can be said about the various accounts of the shooting is that they show a very mixed up youth, perhaps influenced by drugs.2

Third, the defendant has demonstrated great remorse for his conduct. In the letter which he wrote to the Court, he stated in part, "from the bottom of my heart I want to apologize to Mr. Barkers family for taking apart (sic) of their life." In the same letter, the defendant expressed hope that because he is still quite young, he may have the opportunity to turn his life around, avoid drugs, and get on the right track. Although the stipulated sentence would result in the defendant spending a number of years in prison, it gives him the opportunity to someday walk out and make something of his life.

Gov't Sentencing Mem. at 2-3 (No. CR99-5386).

In arguing the matter in open court, the Assistant United States Attorney shows, once again, what a Mensch he is:

The Plea Agreement, Your Honor, is one that was arrived at after considerable discussion between the defense and the United States. The interest of both parties was to arrive at a fair, just result. We recognize that the plea was a plea to second degree murder. We recognize that within the state system a plea to second degree murder would result in a sentence that approximates the sentence that is the subject of this Plea Agreement. Within the federal system the sentence that we have proposed in the Plea Agreement is above the guideline range for second degree murder without any adjustments. That range would be 97 to 121 months. This Plea Agreement calls for a sentence of 132 months. It is in the approximate middle of the range with the adjustment for vulnerable victim. The Plea Agreement takes into account the various circumstances and evidentiary matters that are present in the case. They're part of the fabric of this case. We have to accept that and work within those parameters in attempting to structure the Plea Agreement. And we've done so. Both sides have.

The Defendant has accepted responsibility for the crime. He's written the Court a moving letter, a letter that certainly appears to be a genuine statement of remorse, a genuine acknowledgment that he has committed the most serious of crimes. And that ... he wishes that he could go back and undo it.

He was a 16-and-a-half year old young man at the time of the shooting. This Plea Agreement gives him some hope. The alternative, if the Court does not accept the plea, if the matter proceeds to trial and he's convicted, is a mandatory life sentence. The Court has no discretion. A mandatory life sentence, if the Court doesn't accept the plea.

The Plea Agreement brings some finality to this matter. The family of the victim has had to live with this uncertainty for more than two years because it has taken that extended period of time to work through the juvenile process in the federal court system. Not only have they had to live through that period of uncertainty, but they have had to exist in a state of unknowing frustration during the bulk of that time because the United States was not able to share with them much of the information as to what was going on. They were not able to attend court sessions. They were not able to know the basics about the Defendant and the charge against the Defendant. Now they have some certainty. We have met with them. We have reviewed the facts and circumstances with them. Some of them are here in Court today. And I believe that I can speak for them in saying that they too share the government's view that this Plea Agreement is under the circumstances fair and just in part because it brings finality to this matter.

Rep. Tr. at 4-6 (No. CR99-5386) (Apr. 17, 2001).

The dissent works hard to create the illusion that the presentence report brings to light all manner of telling details omitted by the plea agreement: "About all the stipulation in the plea bargain resolved was that Ellis got a ride in the cab, and the driver turned up dead a few minutes later." Kleinfeld Dissent at 1238. This is far from the truth. The agreement states quite clearly that defendant shot and killed the victim: "The defendant, who was the sole passenger in Mr. Barker's taxi cab at the time of the shooting, did, with malice aforethought, unlawfully kill Donald Ray Barker by shooting him three times in the back of the head with a firearm." Presentence Rep. at 4 (No. CR99-05386JET-001) (quoting Plea Agreement). Thus, the plea agreement discloses all of the observable facts that would support either first- or second-degree murder — in particular that defendant killed victim by shooting him in the head. Most of what the dissent culls from the presentence report, though inflammatory, proves nothing more than what defendant already confessed to. The facts that matter, the facts that differentiate first from second-degree murder, are those bearing on defendant's mens rea — whether he deliberated about the killing before pulling the trigger, or acted from impulse or intoxication. On that point, the presentence report discloses nothing conclusive. See pages 1218-1219 infra.

The dissent ruminates that "[s]ometimes a lawyer offers a good deal because crucial evidence (or a crucial witness) disappears. The prosecutor has never suggested that anything like that happened in this case." Kleinfeld Dissent at 1241. But surely a prosecutor need not lose a key witness in order to doubt whether he can prove his case to the satisfaction of a jury. The prosecutor here repeatedly alluded to the problems he would face in proving premeditation and deliberation. In his sentencing memorandum, quoted above, the prosecutor states: "There are no eye witnesses to the actual shooting and no clear picture of what occurred inside the taxicab. Nor is there clear evidence that on the day of the shooting, the defendant was actually planning the criminal conduct." Sentencing Mem. at 2-3 (footnote omitted). In his statement in open court, also quoted above, the prosecutor says: "The Plea Agreement takes into account the various circumstances and evidentiary matters that are present in the case. They're part of the fabric of this case. We have to accept that and work within those parameters in attempting to structure the Plea Agreement." Rep. Tr. at 4 (Apr. 17, 2001). Later during the same hearing, the prosecutor expresses very clearly his concern about the strength of his evidence:

We have looked at a variety of cases in preparation for this hearing, and we understand the seriousness of this offense. We also are aware of certain evidentiary problems that exist. They are real. They won't go away.

We need to view the case, the entire mosaic of this process, in light of those evidentiary concerns, and we have done so.

Rep. Tr. at 4 (No. CR99-5386JET) (Apr. 27, 2001). And, again:

We don't disagree with the court. This is a heinous crime. We don't disagree with the court that under some view of the evidence, first degree murder could in fact be the appropriate finding of the trier of fact. But there are many other facts which the court and the trier of fact will ultimately have to hear, which may not support that ultimate conclusion.

We also have the obligation to the public to evaluate the evidence and determine whether, in the final analysis, that result is reasonably certain, reasonably uncertain, or lies somewhere between those two extremes.

We have done that. Based upon that analysis, we have concluded that the second degree disposition is appropriate.

Id. at 11-12.

The dissent brushes aside these concerns, quoting selected portions of the presentence report. The point of this is unclear: No one claims the prosecutor had no evidence whatever of premeditation; he must have had some, else defendant would have had no incentive to cop a plea to second-degree murder. The question is whether the government's case was so open-and-shut that the prosecutor must have been a coward or a laggard to accept a plea to a lesser charge, so the district court had to step in to prevent an injustice — as the dissent vehemently argues. It was not.

The dissent quotes with fanfare a taped conversation between defendant and one of his friends, where Ellis admits the killing and claims to have taken $2300, which he used to buy drugs. Kleinfeld Dissent at 1237. But the taped conversation is hardly conclusive of premeditation; defendant says nothing about planning the crime in advance. The part about robbing the victim appears to be a lie. The presentence report does not list robbery as part of the offense conduct, and the probation officer admits there is no proof of robbery: "It should be noted that there is no evidence that [defendant] actually robbed, or attempted to rob the murdered victim. Therefore, the motive for the murder is known only to the defendant." Sentencing Rec. at 2.

Moreover, the taped conversation is only one of several inconsistent accounts defendant gave as to why he committed the murder: He panicked when he thought the taxi driver had locked him in the cab; he shot the driver because the latter laughed at him. There is also solid evidence that defendant was a daily drug user, and was picked up by the cab outside a bar. At trial, the jury would have to decide, based on all this evidence, whether defendant committed the murder with deliberation and premeditation, as a result of an impulse or because of alcohol- or drug-induced diminished capacity. See Kane v. United States, 399 F.2d 730, 736 (9th Cir. 1968).

Looking at the full texture of the evidence, considering the prosecution's heavy burden in a criminal case and taking into account the sympathy a jury might feel for defendant because of his youth and tough life, conviction of first-degree murder was far from a foregone conclusion, and voluntary man-slaughter, if the jury believed defendant acted "[u]pon a sudden quarrel or heat of passion," 18 U.S.C. § 1112(a), was a risk. Even an outright acquittal on grounds of self-defense — if the jury believed defendant's "the-taxi-driver-locked-me-in-the-cab" story — was at least a theoretical possibility. These are the kinds of considerations the prosecutor, who knew the strengths and weaknesses of his own case much better than the district court ever could, clearly took into account.

Far from providing a vivid example of why judges need to have a veto over prosecutorial decisions to accept a guilty plea to a lesser charge, as the dissent argues, this is the poster case for why judges should probably not have that power. We have here a splendid example of cooperation between a meticulous and thoughtful prosecutor — a model of what prosecutors should be — and experienced and dedicated defense counsel. Working together, they forged an agreement that avoided the risk, delay and cost of a trial, comported with the wishes of the victim's family, and gave a troubled and misguided youth who committed this heinous crime when barely old enough to get a driver's license, the hope of salvaging a piece of his life.

Into this carefully arranged glass menagerie burst the district judge with the force and finesse of a cannon ball. Armed only with information summarized in a few paragraphs of a report prepared by non-lawyers; having seen or heard none of the witnesses; having talked to no member of the victim's family; betraying no appreciation of the evidentiary objections and defenses that could be interposed to the prosecution's case, the judge forced the United States to go to trial on a crime it did not believe it should or could prove. As Judge Trott correctly observes, the district judge was "defensive, inflexible, and intractable, not to mention uninformed and obdurate." Trott Concurrence at 1229. If this is what judicial supervision over charge bargains looks like, count me out.

A final note about the dissent's policy argument. The dissent refers repeatedly to an alleged injustice in this case, Kleinfeld Dissent at 1229, 1236, 1238; it quotes the district court's statement that "justice... hasn't been done in this case," and adds, emphatically, "He was right." Id. at 1229. But what is this terrible injustice the dissent is complaining about? Putting aside the government's risk that it might not be able to prove first- or even second-degree murder, what exactly does the public gain by forcing an unwilling prosecutor and defendant to trial on first-degree murder?

If convicted of first-degree murder, defendant would be subject to a mandatory life sentence. 18 U.S.C. § 1111(b). The maximum sentence for second-degree murder is also life, though not mandatory, id., so it's subject to the Sentencing Guidelines regime. Yet, even under the Sentencing Guidelines, the district judge could consider un-charged conduct, see U.S.S.G. § 1B1.3, to wit, premeditation and deliberation, which need not even be proven beyond a reasonable doubt, see United States v. Johansson, 249 F.3d 848, 853-54 (9th Cir.2001). If the district judge were to find that defendant acted with premeditation and deliberation, that would easily take the case out of the heartland of second-degree murder cases. In such circumstances, the Supreme Court has instructed that we must defer to departures by district judges, Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); if the judge here chose to give a life sentence as an exercise of his sentencing discretion, he would most likely be upheld. Thus, the only practical effect of the charge bargain is that defendant is spared the often harsh effects of a mandatory minimum life sentence for a crime he committed as a teenager.

While reasonable minds differ on the merits of the Sentencing Guidelines, compare G. Thomas Eisele, The Sentencing Guidelines System? No. Sentencing Guidelines? Yes., 55 Fed. Probation 16, 16 (1991) (opposing Guidelines), with Andrew J. Kleinfeld, The Sentencing Guidelines Promote Truth and Justice, 55 Fed. Probation 16, 17 (1991) ("I have sometimes felt compelled by the guidelines to impose a sentence which seemed much too long, and this has been a very painful event."), I am aware of no respectable support for mandatory minimums, and certainly none for mandatory life sentences for crimes committed by children. In fact, our most distinguished jurists and commentators have spoken out against the Procrustean regime of mandatory minimum sentences, and in favor of sentences that reflect the informed discretion of the trial judge. See, e.g., The Honorable Anthony M. Kennedy, Speech at the American Bar Association Annual Meeting (Aug. 9, 2003); Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 2420, 153 L.Ed.2d 524 (2002) (Breyer, J., concurring in part and concurring in the judgment); Judicial Conference of the United States, Long Range Plan for the Federal Courts, at 60 (Dec.1995) (expressing official position of federal judiciary that "Congress should be encouraged not to prescribe mandatory minimum sentences"); Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L.Rev. 199 (1993). Can we really say that a grave injustice has been committed, that the public was denied its pound of flesh, because the district judge would have to exercise informed discretion before it could cast defendant into the slammer and throw away the key? My dissenting colleagues seem to think so, but I just don't get it.

Of course, this is all beside the point because the Federal Rules of Criminal Procedure provide an easy means for district courts to do precisely what the dissent wishes them to do: They can refuse to accept a plea until and unless defendant consents in writing to the preparation of a presentence report, to be reviewed by the district court prior to acceptance of the plea. Moreover, if it really turns out to be a big problem that district courts lack authority to vacate guilty pleas, the Federal Rules of Criminal Procedure can be tweaked to give them such power. Since its adoption in 1944, Rule 11 has been amended in each of the following years: 1966, 1974, 1975, 1979, 1982, 1983, 1985, 1987, 1988, 1989, 1999 and 2002; Rule 32 has been amended even more frequently. The Sentencing Commission, too, can alter the process easily enough by changing the Chapter Six policy statements into guidelines. And, of course, Congress can always act to make the Chapter Six policy statements binding, as it did with respect to those in Chapter Seven. See Pub.L. No. 103-322, § 280001, 108 Stat. 1796, 2096 (1994); see also United States v. Plunkett, 94 F.3d 517, 519 (9th Cir.1996). The dissent's cataclysmic predictions about a seismic shift of power from the judiciary to the executive branch are greatly overstated. This is a single mistake by a single judge in a single case, not the sacking of Rome by the Visigoths.

But there is a more fundamental issue here, one having to do with our own responsibility in interpreting and applying the law. Are we to be driven by our policy preferences to twist and bend the rules of construction in order to achieve the result that pleases us — and gives judges more power? Or are we to interpret rules and precedents according to neutral principles, following our policy preferences only where these principles do not yield a clear result? My understanding of judicial restraint is that we must do the latter, not the former, and if neutral application of the rule of law leads to a result we don't much like, we must trust the relevant political or administrative processes to make a change. I am sorry to learn that my dissenting colleagues' view as to the proper role of the judiciary differs so markedly from my own.

TROTT, Circuit Judge, concurring in part and dissenting in part, with whom KOZINSKI, Circuit Judge, joins in parts III, IV, and V:

I respectfully disagree with my colleagues' understanding of this case because I read the record differently than they do, starting with the first issue of whether the district court ever accepted Ellis's proffered plea of guilty. Judge Wardlaw, Judge Kozinski, and Judge Kleinfeld in dissent adopt as a premise for their conclusions the notion that the district court accepted Ellis's plea on December 8, 2000. Although the record is not free from arguable ambiguity on this issue, I disagree. The record does not demonstrate — implicitly or otherwise — that the district court ever accepted Ellis's plea to second degree murder. Thus, my colleagues see this case as involving what it takes to vacate a plea once that plea has been accepted. I do not, for two reasons. First, on this record I am not prepared to accept the proposition that a district court judge has misrepresented to us what he did; and second, and more importantly, that same record — read in the light of the governing rules and caselaw — does provide ample support for the judge's explanation and characterization of his actions. The record shows that the district court, confronted with a Rule 11(c)(1)(A) and (C) plea agreement containing a charge bargain as well as a sentencing agreement, did exactly what the law "required." Rule 11(c)(3)(A) says,

To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.

As the Supreme Court noted in Hyde, 520 U.S. 670, 675 n. 2, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997), more than two years before Ellis's proffered plea,

Under the Sentencing Guidelines, a district court is required to defer its decision about whether to accept a type A or type C agreement until after it has reviewed the presentence report, unless the court believes that a presentence report is not required. United States Sentencing Commission, Guidelines Manual § 6B1.1(c) (Nov.1995) (USSG).

Granted, it would have been better practice for the district court to have said when Ellis offered his plea as part of the plea bargain that it was deferring acceptance of both the plea and the plea bargain until later, but it didn't. The court simply put the case over pending the preparation of a PSR; but deferral is not acceptance. United States v. Shaker, 279 F.3d 494 (7th Cir.2002).

* Judge Wardlaw asserts that "[t]here can be no dispute that the district court accepted Ellis's guilty plea to second degree murder and deferred acceptance of the plea agreement." No dispute? To begin with, the judge himself says that he never accepted Ellis's plea. He says so in his Response to the Petition for a Writ of Mandamus filed on December 12, 2002, and he said it definitively on April 17, 2000, in a hearing on this very issue in the district court.

Let me begin with the judge's explanation in his Response of what happened on December 8, 2000, to Ellis's proffered plea, which was embedded in the Rule 11(e)(1)(A) and (C) plea agreement tendered to the court. In his Response, the judge categorically denies ever accepting the proffered plea.

The judge points out in this regard (1) that a defendant does not have a constitutional right to have his guilty plea accepted by the court, citing Lynch v. Overholser, 369 U.S. 705, 719, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962) and North Carolina v. Alford, 400 U.S. 25, 38 at n. 11, 91 S.Ct. 160, 27 L.Ed.2d 162(1970); (2) that a district court has discretion to accept or reject proffered pleas, citing United States v. Miller, 722 F.2d 562 (9th Cir.1983); and (3) that he did not find that the plea was supported by a factual basis or say that he had accepted it, ever. What he did do on December 8, 2000, he represents, was to put everything regarding the plea agreement, which included the plea, over to April 17, 2001, when he would be in a position to decide — based on consideration of the PSR — whether (1) to accept the plea, and (2) to accept the plea agreement with respect to sentencing. In footnote # 1 of his Response, he offers the PSR itself as an exhibit in support of his position, which he says he relied upon in rejecting both the plea and the sentencing agreement.

Turning to April 17, 2001, and the cold record,