Eighth Circuit Notes Split Re Whether a Defendant Can Appeal the Adequacy of a Factual Basis after Entering an Unconditional Guilty Plea

Per U.S. v. Cheney, 571 F.3d 764 (8th Cir. July 8, 2009):

Although Holland limited his appeal waiver to exclude a challenge to the factual basis for his plea, he did not enter a conditional guilty plea in accordance with the procedure of Federal Rule of Criminal Procedure 11(a)(2). The law is unsettled about whether a defendant can appeal the adequacy of a factual basis after entering an unconditional guilty plea. In United States v. Beck, 250 F.3d 1163, 1165 (8th Cir.2001), we held that a defendant, by entering a guilty plea that was not conditional, waived his right to appeal the sufficiency of the factual basis for one element of the offense of conviction, but in United States v. Marks, 38 F.3d 1009, 1012-13 (8th Cir.1994), we reviewed the adequacy of a factual basis under Rule 11 despite an unconditional guilty plea. Other circuits appear to be divided on the question. Compare, e.g., United States v. Lacey, 569 F.3d 319, 323 (7th Cir.2009) (reviewing adequacy of factual basis), United States v. Baymon, 312 F.3d 725, 727-28 (5th Cir.2002) (same), and United States v. McKelvey, 203 F.3d 66, 69-70 (1st Cir.2000) (same), with United States v. Johnson, 89 F.3d 778, 784 (11 th Cir.1996) (holding that right to challenge factual basis is waived by guilty plea), United States v. Willis, 992 F.2d 489, 490 (4th Cir.1993) (same), and United States v. Freed, 688 F.2d 24, 25-26 (6th Cir.1982) (same).

We need not decide this point of law, because the government does not contend that Holland's guilty plea bars him from challenging the factual basis for his plea-in effect, waiving any claim to rely on a possible waiver by Holland. See United States v. Jacobo Castillo, 496 F.3d 947, 954 (9th Cir.2007) (en banc). Therefore, we proceed to consider the sufficiency of the factual basis for Holland's plea. See Fed.R.Crim.P. 11(b)(3).


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