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Bluebook 21st ed.

William T. Stone Jr., Waiving Good-Bye to Inconsistency: Factual Basis Challenges to
Guilty Pleas in Federal Courts, 45 GA. L. REV. 311 (2010).

ALWD 7th ed.

William T. Stone Jr., Waiving Good-Bye to Inconsistency: Factual Basis Challenges to
Guilty Pleas in Federal Courts, 45 Ga. L. Rev. 311 (2010).

APA 7th ed.

Stone, W. (2010). Waiving good-bye to inconsistency: factual basis challenges to
guilty pleas in federal courts. Georgia Law Review, 45(1), 311-342.

Chicago 17th ed.

William T. Stone Jr., "Waiving Good-Bye to Inconsistency: Factual Basis Challenges to
Guilty Pleas in Federal Courts," Georgia Law Review 45, no. 1 (Fall 2010): 311-342

McGill Guide 9th ed.

William T. Stone Jr., "Waiving Good-Bye to Inconsistency: Factual Basis Challenges to
Guilty Pleas in Federal Courts" (2010) 45:1 Ga L Rev 311.

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William T. Stone Jr., 'Waiving Good-Bye to Inconsistency: Factual Basis Challenges to
Guilty Pleas in Federal Courts' (2010) 45(1) Georgia Law Review 311

MLA 9th ed.

Stone, William T. Jr. "Waiving Good-Bye to Inconsistency: Factual Basis Challenges to
Guilty Pleas in Federal Courts." Georgia Law Review, vol. 45, no. 1, Fall 2010, pp.
311-342. HeinOnline.

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WAIVING GOOD-BYE TO INCONSISTENCY:
FACTUAL BASIS CHALLENGES TO GUILTY
PLEAS IN FEDERAL COURTS
TABLE OF CONTENTS

I. INTRODUCTION ...................................... 312

II. BACKGROUND ............................ ............... 314

A. THE CIRCUIT SPLIT .......................... ..... 316
1. Circuit Court Cases ................. ...... 317
2. The Extent of Courts'Analyses .............. 321
3. The Applicable Standard of Review for Courts
Reviewing a FactualBasis Challenge.... ..... 322
4. Courts'Powerto Consider Waiver............322
5. UnderstandingCourts'Positionsand the Need for
Uniformity ....................... ...... 323
B. VIEWS OF THE SUPREME COURT.....................324

III. ANALYSIS .......................................... 327

A. MAINTAINING THE EFFICACY AND FINALITY OF GUILTY
PLEAS . ........................................... 328
B. ALTERNATE FORMS OF RELIEF AVAILABLE TO
DEFENDANTS ......................... .. .............. 332
C. PRACTICAL PROBLEMS WITH ALLOWING FACTUAL BASIS
REVIEW.........................................334
D. OTHER ISSUES RELATING TO FACTUAL BASIS
CHALLENGES .................................... 338
E. DIFFERENTIATING THE ADEQUACY OF THE FACTUAL
BASIS FROM THE REQUIREMENTS OF RULE 11................340

IV. CONCLUSION .................................. ...... 341

311
312 GEORGIA LAW REVIEW [Vol. 45:311

I. INTRODUCTION

For a moment, place yourself in the shoes of an Assistant

United States Attorney prosecuting a federal criminal case. After
an investigation and negotiation with the opposing side, you
succeed in convincing the defendant and his counsel to agree to a
plea bargain satisfactory to both sides. The district court conducts
a plea hearing during which the judge follows proper procedure by
informing the defendant of his rights. The court informs the
defendant that, by pleading guilty, he forfeits numerous rights
including his right to a trial by jury, his right against self-
incrimination, his right to counsel, and his right to confront his
accusers.' The district court also requires the defendant to admit
culpability for all elements of the crime in open court. The court
accepts the plea, and the defendant receives the expected sentence.
No more than fourteen days after the entry of the judgment, 2 the
defendant appeals his guilty plea. You receive notice that the
defendant appeals the conviction on the theory that a factual
element of the offense was not satisfied during the consideration of
the guilty plea by the court. The first question you ask yourself is
whether this is an adequate basis for an appeal? The answer is, of
course, it depends. The answer to this question, however, does not
depend on things like the class of the crime or procedural niceties.
Instead, the answer depends on the jurisdiction in which you
practice.
The question addressed here is whether a conviction obtained
through a voluntary and intelligent guilty plea may be challenged
on the ground that the plea lacks an adequate factual basis. The
majority of federal circuits have addressed this question, and they
have split relatively evenly in determining whether to allow the
factual basis challenge. 3 Despite the number of cases on both sides
of the issue, courts have a notable paucity of rationale or analysis

I See FED. R. CRIM. P. 11(b) (requiring the court to inform the defendant of these rights).
2 See FED. R. APP. P. 4(b)(1)(A) (requiring criminal defendants to file a notice of appeal
with the district court within fourteen days of the judgment).
3 See infra Part II.A.1.
2010] WAIVING GOOD-BYE TO INCONSISTENCY 313

supporting their holdings. 4 The unsettled law in this area and the
exiguous reasoning set forth in courts' opinions raise concerns
given the importance of the issue. The principal question goes
directly to the propriety of entertaining a certain type of appeal
following a procedure that results in "[r]oughly 90% of all criminal
convictions."5 Furthermore, the stakes are high in a criminal
prosecution: with community safety and order on one side and an
individual's liberty on the other. This Note surveys the existing
law of factual basis challenges and argues that prohibiting
convicted defendants from making this challenge constitutes the
proper course. Accordingly, this Note offers reasoning to support
those jurisdictions that hold factual basis challenges waived by
guilty pleas and demonstrates that the contemplated benefits
gained from permitting factual basis reviews are largely ineffective
or illusory.
Part II explains the split in circuit court authority. After
presenting the relevant case law on the principal issue, Part II
discusses three pertinent and equally divisive subissues. First, if a
court decides to dismiss a factual basis challenge as waived,
should the court nonetheless engage in a cursory analysis of the
facts that the defendant alleges to be inadequate? Second, if a
court chooses to entertain the defendant's factual basis challenge,
what standard of review should the court employ? Third, should a
court have the power to hold the appeal waived even if the
Government chooses to contest the factual basis challenge on its
merits rather than arguing for waiver? Part II concludes with a
review of several Supreme Court cases addressing guilty plea
appeals to glean some of the overarching objectives and policies
underlying the guilty plea process in federal court.

4 See infra Part II.A.2.

5 DONALD J. NEWMAN, CONVICTION: THE DETERMINATION OF GUILT OR INNOCENCE
wITHOUT TRIAL 3 n.1 (1966). Recent authority suggests that this percentage remains
constant. See Frank H. Easterbrook, Plea Bargainingas Compromise, 101 YALE L.J. 1969,
1978 n.22 (1992) (noting that 80% to 90% of federal criminal cases end in guilty pleas);
Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV.
2117, 2121 (1998) ("[in major federal courts somewhere around eighty to ninety percent of
felony indictments fail to produce a trial, being disposed of instead by a plea of guilty by the
defendant and/or the withdrawal of charges by the state.").
314 GEORGIA LAW REVIEW [Vol. 45:311

Part III sets forth various arguments in support of proscribing

factual basis challenges to guilty pleas. This Part also outlines the
important policy considerations, articulated by the Supreme
Court, underlying the maintenance of the efficacy and finality of
guilty pleas and asserts how these considerations support the
position that a valid guilty plea waives a factual basis challenge.
Additionally, Part III identifies ways in which courts already
recognize various forms of relief for defendants who plead guilty
and suggests that this available relief obscures the need to allow
appellate challenges to the factual basis for the plea. This Part
also addresses assorted practical problems with allowing factual
basis challenge review. Part III follows up on the subissues
discussed in Part II by proffering sound solutions to these
subissues. Part III concludes with a discussion of possible
explanations behind the split in authority with a theory on how
the two lines of authority might be reconciled.

II. BACKGROUND

In order to provide a better understanding of the issue, this

Part first explains guilty plea procedure in federal court. Next,
this Part addresses the split in authority among the circuits and
surveys illustrative cases from various jurisdictions. This Part
also reviews the proper standard of review for a factual basis
challenge and the extent of a court's power to dismiss the appeal
as waived. This Part concludes with a survey of relevant Supreme
Court cases reflecting the attitude of the Court toward guilty pleas
and the competing policies underlying the Court's approach to
guilty plea challenges.
The "vast majority of criminal convictions result from [guilty]
pleas."6 A plea of guilty constitutes more than a mere admission to
various acts; "it is itself a conviction."7 In light of the gravity of
this plea, procedural safeguards exist for defendants offering a

6 United States v. Timmreck, 441 U.S. 780, 784 (1979); see also Robert E. Scott &

William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1912 (1992) ("[Plea
bargaining] is not some adjunct to the criminal justice system; it is the criminal justice
system.").
7 Boykin v. Alabama, 395 U.S. 238, 242 (1969).
2010] WAIVING GOOD-BYE TO INCONSISTENCY 315

guilty plea. In federal criminal proceedings, Rule 11 of the Federal

Rules of Criminal Procedure governs pleading and provides these
safeguards.8 Before a district court accepts a guilty plea, Rule 11
requires the court to inform the defendant of certain rights
including, among others, the right to plead not guilty, the right to
be represented by counsel, the right against self-incrimination, the
right to confront accusers, as well as the waiver of these trial
rights should the court accept the defendant's guilty plea.9 The
court must also ensure that the plea is voluntary by addressing
the defendant in open court to determine that the defendant
understands his rights.10 Additionally, the court must satisfy
itself that the plea has a factual basis." As the Supreme Court
has said, "Rule 11 is designed to eliminate any need to resort to a
later fact-finding proceeding 'in this highly subjective area.' "12
Once a court accepts the guilty plea and "imposes a sentence, the
defendant may not withdraw a plea[], and the plea may be set
aside only on direct appeal or collateral attack." 3 The right to
appeal a criminal conviction is a statutory entitlement, rather
than a constitutional one, and a defendant may waive this right as
part of a plea agreement.14
The requirement that the plea have a basis in fact has not
always existed.' 5 In 1966, an amendment to Rule 11 made factual
basis determination mandatory in federal court.' 6 Prior to the
adoption of the factual basis requirement, courts did not consider

8 FED. R. CRIM. P. 11.

9 Id. at 11(b)(1).
10 Id. at 11(b)(2).
11 Id. at 11(b)(3); see also United States v. Moran, 452 F.3d 1167, 1172 (10th Cir. 2006)
(affirming district court's refusal to enter guilty plea due to insufficient factual basis).
12 McCarthy v. United States, 394 U.S. 459, 469 (1969) (quoting Heiden v. United States,

353 F.2d 53, 55 (9th Cir. 1965)).

13 FED. R. CRIM. P. 11(e).
14 United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002).

15 See John L. Barkai, Accuracy Inquires for All Felony and Misdemeanor Pleas:

Voluntary PleasBut Innocent Defendants?, 126 U. PA. L. REv. 88, 111 (1977) (stating that a
factual basis determination did not attract much attention until Rule 11 was amended to
require it).
16 Id.
316 GEORGIA LAWREVIEW [Vol. 45:311

the question of guilt or innocence on appeal, viewing the plea itself

as decisive of this issue.' 7
A factual basis challenge should be distinguished from the
related challenge to a guilty plea's voluntariness. A meritorious
voluntariness challenge can arise when the plea is obtained
through force or threats, 8 when the court fails to adequately
apprise the defendant of his rights, 9 or when the defendant
receives ineffective assistance of counsel. 20 The procedures
governing such appeals will not be discussed extensively here.
The issue addressed by this Note arises when a defendant
contends that one or more elements of a charged offense lack
factual grounds upon which a conviction could be entered. 21
A. THE CIRCUIT SPLIT

The Eighth Circuit in United States v. Cheney acknowledged

the split in authority regarding factual basis challenges. 22 On one
side of the issue, the Eight Circuit cited the Fourth, Sixth, and
Eleventh Circuits as holding that the challenge is waived by an
unconditional guilty plea. 23 Conversely, the Eighth Circuit noted
that the First, Fifth, and Seventh Circuits permit factual basis
challenges. 24 In addition to the courts listed by the Eighth Circuit,
other jurisdictions have come out differently on this issue as well.
The Ninth Circuit held that a guilty plea waived the factual basis

17 Note, The Trial Judge's Satisfaction as to the Factual Basis of Guilty Pleas, 1966
WASH. U. L.Q. 306, 309 (1966).
18 FED. R. CRIM. P. 11(b)(2).
19 Id. at 11(b)(1).
20 See Hill v. Lockhart, 474 U.S. 52, 56 (1985) ("[The voluntariness of the plea depends

on whether counsel's advice 'was within the range of competence demanded of attorneys in
criminal cases.'" (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970))).
21 See FED. R. CRIM. P. 11(b)(3) (stating factual basis requirement).
22 See 571 F.3d 764, 768 (8th Cir. 2009) (noting split among circuits and listing six

divided jurisdictions).
23 Id.
2 Id.
2010] WAIVING GOOD-BYE TO INCONSISTENCY 317

challenge. 25 The Second, Third, Tenth, and D.C. Circuits,

however, allow appellate review. 26
1. Circuit Court Cases. The following examples will illustrate
more completely the split in authority on the factual basis
challenge issue. The Fourth Circuit addressed a factual basis
challenge regarding whether an inoperative firearm could
constitute using or carrying a firearm during the commission of a
drug trafficking crime in United States v. Willis. 2 7 The court held
that the appellant waived the challenge by pleading guilty.28 In
reaching its holding, the court stated that "a guilty plea
constitutes a waiver of all nonjurisdictional defects . . . including
'the right to contest the factual merits of the charges.' "29 The
court also noted that the defendant's challenge was not to the
"voluntary, knowing, and intelligent nature of his guilty plea"30 -
an important distinction in the forthcoming analysis.
In United States v. Johnson, the Eleventh Circuit faced a
defendant's contention that he possessed an insufficient quantity
of crack cocaine to form a factual basis for his plea.31 The court
held that the appellant's guilty plea constituted a waiver of all
nonjurisdictional defects, and further noted that "the quantity of
drugs involved is not an element of the offense, but is relevant only
to sentencing."32
The Ninth Circuit considered a factual basis challenge in
United States v. Mathews.33 There, the defendant contended that
his guilty plea lacked a factual basis because he did not transport
a kidnapping victim across state lines.34 The court first rejected

25 See United States v. Mathews, 833 F.2d 161, 165 (9th Cir. 1987) (holding that by
pleading guilty, the defendant "admitted the allegations)" and therefore could not raise a
factual basis challenge on appeal).
26 See United States v. Adams, 448 F.3d 492, 497-98 (2d Cir. 2006); United States v.
Ahn, 231 F.3d 26, 31-32 (D.C. Cir. 2000); United States v. Cefaratti, 221 F.3d 502, 510-11
(3d Cir. 2000); United States v. Graves, 106 F.3d 342, 345 (10th Cir. 1997), for courts
reviewing the factual basis of a defendant's guilty plea.
27 992 F.2d 489, 490 (4th Cir. 1993).

28 Id.
29 Id. (quoting United States v. Freed, 688 F.2d 24, 25 (6th Cir. 1982)).
30 Id. at 490-91.
31 89 F.3d 778, 784 (11th Cir. 1996).
32 Id.
33 833 F.2d 161, 163 (9th Cir. 1987).
3 Id.
318 GEORGIA LAW REVIEW [Vol. 45:311

the defendant's argument that the lower court lacked federal

subject matter jurisdiction because of the alleged absence of
"proof' necessary for establishment of the jurisdictional element of
the crime.35 Then, the court declined to consider the merits of the
factual basis challenge by stating that the plea "conclusively
admits all factual allegations of the indictment."36
The Sixth Circuit addressed this issue in a case in which the
defendant pled nolo contendere to charges of willful failure to pay
income taxes. 37 On appeal, the defendant challenged the factual
basis for the finding of willfulness.38 Although the defendant in
United States v. Freed did not enter a guilty plea, the court held
that, like a guilty plea, a plea of nolo contendere constituted a
waiver of challenges to all nonjurisdictional defects.39 The court
clarified that waiver extended to "any claims not logically
inconsistent with the issue of factual guilt, as well as the right to
contest the factual merits of the charges against [the defendant]."40
Once again, this court made the important observation that the
defendant did not contest that his guilty plea was voluntary and
intelligent. 41 When the Sixth Circuit later ruled on this issue in
the guilty plea context, the court remained consistent and held
that the challenge was waived. 42
The Seventh Circuit, which was listed in United States v.
Cheney as a jurisdiction that recognizes a challenge to the factual
basis for the plea,43 may have been misclassified. In United States
v. Lacey, the court examined the factual basis for the defendant's
plea in light of his assertion that he did not transport child
pornography in interstate commerce. 44 However, the court first

as Id.
36 Id. at 163-64 (quoting United States v. Benson, 579 F.2d 508, 509 (9th Cir. 1978))
(internal quotation marks omitted).
37 United States v. Freed, 688 F.2d 24, 24 (6th Cir. 1982).
38 Id. at 25.
39 Id. at 25-26.
40 Id. at 25.
41 Id. at 26.
42 United States v. Turner, 272 F.3d 380, 389-90 (6th Cir. 2001).

43 See United States v. Cheney, 571 F.3d 764, 768 (8th Cir. 2009) (citing the Seventh
Circuit as jurisdiction in which defendants can appeal the adequacy of a factual basis after
entering an unconditional guilty plea).
- 569 F.3d 319, 323-24 (7th Cir. 2009), cert. denied, 130 S. Ct. 431 (2009).
2010] WAVING GOOD-BYE TO INCONSISTENCY 319

dismissed the defendant's factual basis challenge to the

jurisdictional element of the crime stating that "[a]s an offense
element, the challenge does not implicate the court's power to hear
a case and can be waived by a guilty plea-as it was here."4 5
Other cases from this jurisdiction follow this approach.4 6 In this
respect, the Seventh Circuit maintains precedent congruent with
the Fourth and Eleventh Circuits.47
Taking the opposite approach to the issue, the Fifth Circuit in
United States v. Baymon reviewed the factual basis in light of a
defendant's claim that he was not a "public official" within the
meaning of 18 U.S.C. § 201.48 Despite the Government's
contention that the defendant waived his challenge by pleading
guilty and the inclusion of an appeal waiver provision in the plea
agreement, the court declared that it "has the power to review if
the factual basis for the plea fails to establish an element of the
offense which the defendant pled guilty to."49 After a review of the
sufficiency of the factual basis, the court concluded that there was
no clear error and affirmed the conviction.50
In United States v. Adams, the Second Circuit permitted a
factual basis review of a defendant's challenge to a conviction for
engaging in a cocaine conspiracy.51 The defendant claimed that he
engaged in a marijuana conspiracy, which carries a lighter
sentence than a conviction for a cocaine conspiracy. 52 The court
agreed with the defendant and vacated the conviction, noting that

45 Id. at 323.
46 See Milhem v. United States, 834 F.2d 118, 120 (7th Cir. 1987) (holding that a guilty
plea "constitutes a waiver of any claim of insufficiency of proof on any element of that
offense"). More recently, the Seventh Circuit stated that waiver due to a plea agreement
may extend to constitutional objections as well. See United States v. Harvey, 484 F.3d 453,
455 (7th Cir. 2007) (citing Supreme Court authority to support the proposition that "it is
impossible to see why a voluntary plea agreement may not waive constitutional objections
to the particular sentence imposed" (quoting United States v. Behrman, 235 F.3d 1049,
1052 (7th Cir. 2000))).
47 See United States v. Willis, 992 F.2d 489, 490-91 (4th Cir. 1993) (holding guilty plea to
constitute a waiver of all nonjurisdictional defects but still refuting merits of defendant's
factual basis challenge); United States v. Johnson, 89 F.3d 778, 784 (11th Cir. 1996) (same).
48 312 F.3d 725, 726-29 (5th Cir. 2002).
49 Id. at 727 (citing United States v. Spruill, 292 F.3d 207, 214-15 (5th Cir. 2002)).
50 Id. at 729-30.
si 448 F.3d 492, 498-502 (2d Cir. 2006).
52 Id. at 499.
320 GEORGIA LAW REVIEW [Vol. 45:311

the district court must comply fully with Rule 11 to enter a valid
guilty plea.5 3 In vacating the defendant's conviction, the court
stated that a lack of factual basis is a defect "so fundamental as to
cast serious doubt on the voluntariness of the plea."54
United States v. McKelvey presented the First Circuit with an
opportunity to review a factual basis challenge raised for the first
time in the appellate court.55 The McKelvey court viewed the issue
in terms of compliance with Rule 11,56 like the Second Circuit's
reasoning in Adams.5 7 The defendant challenged the district
court's factual basis for finding that he possessed three
photographic negatives which constituted "3 or more books,
magazines, periodicals, films, video tapes or other matter," under
18 U.S.C. § 2252(a)(4)(B), the federal statute criminalizing child
pornography.58 The court reviewed the challenge and reversed the
conviction because it found that the negatives did not fulfill the
statutory requirement.59
The Eighth Circuit has contradicting cases on this issue. For
example, in United States v. Beck the Eighth Circuit held that "by
entering an unconditional guilty plea ... [the defendant] waived
his right to appeal the district court's conclusion that the
interstate commerce element was satisfied."60 This holding,
however, conflicted with an earlier Eighth Circuit decision in
which the circuit chose to entertain a factual basis challenge to a
conviction for conspiracy to distribute cocaine. 6 1 In Cheney, the
court took notice of the inconsistent internal case law. 62 The court,
though, declined to rule on the issue and considered the adequacy

53 Id. at 498, 502.

5 Id. at 502 (quoting Godwin v. United States, 687 F.2d 585, 591 (2d Cir. 1992)) (internal
quotation mark omitted).
55 203 F.3d 66, 70 (1st Cir. 2000).
56 See id. ("[W]e will determine Rule 11 compliance for the first time on appeal if the
record is sufficiently developed." (quoting United States v. Martinez-Martinez, 69 F.3d
1215, 1219 (1st Cir. 1995)) (internal quotation mark omitted)).
67 See Adams, 448 F.3d at 501 (reviewing factual basis of guilty plea for noncompliance
with Rule 11).
58 McKelvey, 203 F.3d at 70 (quoting 18 U.S.C. § 2252(a)(4)(B) (1984)).
59 Id. at 72.
o 250 F.3d 1163, 1167 (8th Cir. 2001).
61 United States v. Marks, 38 F.3d 1009, 1012-13 (8th Cir. 1994).
62 United States v. Cheney, 571 F.3d 764, 768 (8th Cir. 2009).
2010] WAIVING GOOD-BYE TO INCONSISTENCY 321

of the factual basis for the defendant's plea because the

Government did not contend that the defendant waived his factual
basis challenge by pleading guilty. 63 This unresolved split among
panels of the Eighth Circuit further underscores the inconsistency
of the federal appellate courts' treatment of these appeals and the
need for a resolution to the discrepancies in this area of the law.
2. The Extent of Courts' Analyses. The circuits do not diverge
into two clearly delineated positions. Rather, the approaches
taken by the circuit courts are more complex and disparate than it
may appear from an initial survey of the case law-even among
the jurisdictions on the same side of the principal issue.
Regarding courts' disposition of this issue, differences exist even
among the circuits in agreement that unconditional guilty pleas
waive factual basis challenges. More specifically, courts differ in
how extensively they review the factual basis challenge. For
example, the Fourth Circuit in Willis and the Eleventh Circuit in
Johnson held that factual basis challenges are waived. 64 Despite
this holding, these two courts briefly surveyed the merits of the
defendants' challenges before affirming their convictions.65 By
contrast, the Ninth Circuit in Mathews summarily dismissed a
factual basis challenge to the jurisdictional element of a federal
crime. 66 The court did so without deigning to provide a cursory
review of the merits of the defendant's challenge.67 The Sixth
Circuit likewise held a factual basis challenge waived as to a nolo
contendere plea without discussing the merits of the defendant's
appeal.68 The Eighth Circuit held a factual basis challenge waived
as to the interstate commerce element of a crime. 69 That court
even noted that, by pleading guilty, the defendant forgoes the
possibility that subsequent judicial decisions would have likely not

63 Id. at 769.
6 United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993); United States v. Johnson, 89
F.3d 778, 784 (11th Cir. 1996).
6* See Willis, 992 F.2d at 490--91 (surveying adequacy of facts underlying guilty plea);
Johnson, 89 F.3d at 784 (same).
6 United States v. Mathews, 833 F.2d 161, 163-64 (9th Cir. 1987).
67 Id.

6 United States v. Freed, 688 F.2d 24, 25-26 (6th Cir. 1982).
69 United States v. Beck, 250 F.3d 1163, 1166 (8th Cir. 2001).
322 GEORGIA LAW REVIEW [Vol. 45:311

allowed for a conviction. 70 While these differing approaches are

noteworthy, any substantive difference in the application of this
waiver rule among the various courts is debatable.
3. The Applicable Standard of Review for Courts Reviewing a
FactualBasis Challenge. Among the jurisdictions allowing factual
basis challenges to guilty pleas on appeal, some disagreement
exists as to the applicable standard of review. The Fifth Circuit
applied a plain error standard.71 The First Circuit seemingly
employed a de novo standard in reversing a conviction where the
factual basis argument was asserted for the first time on appeal. 72
The Second Circuit applied an abuse of discretion standard.73 The
Eleventh Circuit, despite holding the challenge waived, used the
term "abuse of discretion" when stating its conclusion regarding
the factual basis challenge. 74 The Sixth Circuit succinctly
summarized the problem when it stated that "the exact method of
producing a factual basis on the record is subject to a flexible
standardof review."7 5
4. Courts' Power to Consider Waiver. Another divisive question
raised by courts' consideration of a factual basis challenge is
whether the court may decline to consider the challenge sua
sponte, or whether the Government must expressly contest the
appealability of the defendant's contention for the court to address
the issue. Unfortunately, the case law sheds very little light on
this issue since most of the decisions do not mention whether the

70 Id.; see also Brady v. United States, 397 U.S. 742, 756, 757 (1970) (holding defendant's

ultimately incorrect appraisal of circumstances is irrelevant).

71 See United States v. Baymon, 312 F.3d 725, 728 (5th Cir. 2002) ("Mt was not plain
error to accept that [the defendant] was a public official ... and, therefore, there was a
sufficient factual basis to support the plea.").
72 See United States v. McKelvey, 203 F.3d 66, 69-72 (1st Cir. 2000) (stating that the
"issue is one of first impression" and vacating conviction without alluding to any deference
due to the district court).
7 See United States v. Adams, 448 F.3d 492, 498 (2d Cir. 2006) ("We review for an abuse
of discretion a district court's decision that a defendant's factual admissions support
conviction . . . ."(citing United States v. Gonzalez, 420 F.3d 111, 120 (2d Cir. 2005))).
74 United States v. Johnson, 89 F.3d 778, 784 (11th Cir. 1996).
75 United States v. Turner, 272 F.3d 380, 384 (6th Cir. 2001) (emphasis added) (quoting
United States v. Tunning, 69 F.3d 107 (6th Cir. 1995)).
2010] WAlVING GOOD-BYE TO INCONSISTENCY 323

Government argued for waiver of the defendant's challenge.76 One

exception to this lack of clarity in the case law appears in a Fifth
Circuit case where the court reviewed the factual basis challenge
despite the Government's argument that the appeal was waived.77
The Third Circuit also reviewed a factual basis challenge over the
Government's objection and concluded that the factual basis for
the plea was sufficient. 8 The court added that the sufficient
factual basis made it unnecessary to address the Government's
contention that the defendant was barred from making this
challenge. 79
5. UnderstandingCourts' Positions and the Need for Uniformity.
It appears difficult to discern any rhyme or reason in a particular
jurisdiction's stance on this issue. However, the source of the
divergence may be more easily understood than it appears from an
initial review. As a general rule, jurisdictions that permit a
factual basis challenge perceive the issue as one of Rule 11(b)
compliance-whether the plea was voluntarily and intelligently
made.80 The jurisdictions on the other side of the issue seemingly
view the factual basis challenge as a waivable assertion against a
finding of fact made by the district court as long as a district court
acted in uncontested compliance with Rule 11(b).8 1 If these two
contrasting perspectives provide the source of the dispute, then it
behooves a defendant to frame their appeal in terms of Rule 11
compliance and intelligent pleading. The Government, however,
must try to assert complete Rule 11(b) compliance and portray the
defendant as merely trying to contest already established facts in
the appellate court in an effort to escape through a procedural
loophole.

76 See McKelvey, 203 F.3d at 69 (neglecting to mention whether the Government argued

for waiver); Johnson, 89 F.3d at 784 (same). But see Baymon, 312 F.3d at 727 (noting the
Government's waiver argument).
77 See Baymon, 312 F.3d at 727 ('The Government argues that [the defendant] has
waived his opportunity to challenge the factual basis of the bill of information by virtue of
his unconditional guilty plea and the appeal waiver provision in the plea agreement.").
78 See United States v. Cefaratti, 221 F.3d 502, 511 n.6 (3d Cir. 2000) (referencing the
Government's objection to the defendant raising the issue on appeal).
7 Id.
8o See supra notes 51-59 and accompanying text.
81 See United States v. Willis, 992 F.2d 489, 490-91 (4th Cir. 1993) (holding the factual
basis challenge waived while approving of the district court's Rule 11 compliance).
324 GEORGIA LAW REVIEW [Vol. 45:311

In light of the considerable confusion in this area, the Supreme

Court should accept the next opportunity to provide consistency on
the principal issue and hopefully settle the satellite issues as well.
As the law stands today, federal court defendants in New York and
Texas may challenge the factual basis for their guilty plea on
appeal, while defendants in Georgia and California cannot
successfully raise this challenge. Until the courts resolve this
issue, the federal court system will continue to lack national
uniformity in handling these appeals.
B. VIEWS OF THE SUPREME COURT

Though the Supreme Court has yet to address the principal

issue, the Court's extant guilty plea jurisprudence sheds light on
guiding principles on this question. After the amendment to
Rule 11 in 1966 that instituted the factual basis requirement, the
Court addressed guilty pleas in McCarthy v. United States.82 The
Court explained that "a guilty plea is an admission to all the
elements of the criminal charge."83 At the same time, the Court in
McCarthy emphasized the need for judicial examination of the
factual basis, stating that "[this examination] is designed to
'protect a defendant who is in the position of pleading voluntarily
with an understanding of the nature of the charge but without
realizing that his conduct does not actually fall within the
charge.' "84 Although the Court did not explicitly discuss a right to
appeal, this language from McCarthy provides support for the
circuits that review defendants' subsequent assertions that their
conduct fails to satisfy the factual elements of a criminal offense.
However, McCarthy came to be interpreted as requiring automatic
reversal for any deviation from the Rule 11 requirements. 85 This
interpretation may have been justified given the "relatively
primitive" and simplistic version of Rule 11 that the Supreme

82 394 U.S. 459, 462 n.4, 466 (1969); see also Barkai, supra note 15, at 111-12 (noting

that McCarthy first addressed the factual basis issue three years after the amendment).
8 McCarthy, 394 U.S. at 466.
84 Id. at 467 (quoting FED. R. CRIM. P. 11 advisory committee's note).
8 See United States v. Vonn, 535 U.S. 55, 66 (2002) (stating that the impetus for the
enactment of Rule 11(h) "stemmed from an expansive reading of McCarthy").
2010] WAIVING GOOD-BYE TO INCONSISTENCY 325

Court interpreted in its decision.86 Congress amended Rule 11 in

1975, making it more complex and thorough,87 but problematically,
the continued application of McCarthy's automatic reversal
requirement to the amended rule resulted in a greater number of
reversals.88
In 1970, the Court addressed challenges to guilty pleas in three
separate cases known as the Brady trilogy. 89 In the first of these
cases, Brady v. United States, the Court discussed prior precedent
and reiterated that a guilty plea must be "both voluntary and
intelligent" to be valid.90 The Court affirmed the conviction, even
though the defendant probably entered a plea agreement only to
avoid the death penalty.9 ' In another case in this trilogy, McMann
v. Richardson, the Court found that coercion or lack of effective
counsel constituted valid grounds for a challenge to a guilty plea. 92
The Court also noted the public interest in the finality of valid
guilty pleas. 93
In a controversial decision in the wake of Brady,94 the Court in
North Carolinav. Alford held that a guilty plea could withstand a
constitutional challenge even if a defendant asserted innocence
during the plea hearing. 95 The Court emphasized the importance
of individual autonomy in the decision to plead guilty. 96 It
reasoned that even if a defendant has doubts about his actual
guilt, he might intelligently conclude that pleading guilty will

86 See id. (explaining that Rule 11 did not require district courts to conduct detailed plea
colloquies with defendants when the Supreme Court decided McCarthy).
87 Compare McCarthy, 394 U.S. at 462 n.4 (quoting Rule 11 in its entirety as it existed in

1969), with FED. R. CRIM. P. 11 (the modern version of the Rule).

8 Cf. Vonn, 535 U.S. at 69-70 ('This approach imposed a cost on Rule 11 mistakes that
McCarthy neither required nor justified .. . .
89 The three cases are: Brady v. United States, 397 U.S. 742 (1970), McMann v.

Richardson, 397 U.S. 759 (1970), and Parker v. North Carolina,397 U.S. 790 (1970).
9 Brady, 397 U.S. at 747 (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)).
91 Id. at 758.
92 397 U.S. at 767.
93 Id. at 774.
94 See Andrew D. Leipold, How the PretrialProcess Contributes to Wrongful Convictions,
42 AM. CRIM. L. REv. 1123, 1156, 1158 (2005) (criticizing Alford pleas because they probably
result in a greater number of wrongful convictions).
9 400 U.S. 25, 37-38 (1970).
96 See id. at 33 (noting that defendants may have various reasons for pleading guilty and
that they should be permitted to decide for themselves).
326 GEORGIA LAWREVIEW [Vol. 45:311

result in a more favorable sentence than he would receive at

trial.97
In subsequent years, as courts struggled in applying
McCarthy's automatic reversal requirement to a more intricate
and detailed Rule 11,98 Congress enacted Rule 11(h) in 1983,99
which provides that "[a] variance from the requirements of this
rule is harmless error if it does not affect substantial rights." 00
Accordingly, the Court has undercut some of its cautionary
jurisprudence embodied by McCarthy.10 ' After the enactment of
Rule 11(h) the Court stated that "a plea of guilty and the ensuing
conviction comprehend all of the factual and legal elements
necessary to sustain a binding, final judgment of guilt and a lawful
sentence." 102 Therefore, if the offender seeks to revive the
proceedings, "the inquiry is ordinarily confined to whether the
underlying plea was both counseled and voluntary."103 Exceptions
to these limitations on the grounds of appeal for a guilty plea
include a court's lack of power to enter a conviction or impose a
sentence.104 The Court in United States v. Broce cited McCarthy
when discussing the importance of guaranteeing a voluntary plea
by ensuring the defendant's understanding of the law as it applies
to the facts.105
More recently, the Court faced the question of whether a
defendant who plans to enter a guilty plea has a constitutional
right to impeachment information in the Government's
possession.106 Answering this question in the negative, the Court
noted that impeachment information relates to the fairness of a

97 See id. at 33, 37 (observing that the defendant may have believed that he had
absolutely nothing to gain by trial because of "the overwhelming evidence against him").
98 See supra note 88 and accompanying text.
9 See United States v. Dominguez Benitez, 542 U.S. 74, 80 n.5 (2004) (discussing the
reasons for amending Rule 11).
' FED. R. CRM. P. 11(h).
101 See United States v. Broce, 488 U.S. 563, 569 (1989) (proscribing the means by which
defendants can appeal their guilty pleas).
102 Id.
103 Id.
10 Id.
105 Id. at 570.
106 United States v. Ruiz, 536 U.S. 622, 625 (2002).
2010] WAIVING GOOD-BYE TO INCONSISTENCY 327

criminal trial, but such information is not required for a voluntary,

knowing, and intelligent guilty plea. 107
In 2004, the Court faced a question relating to a defendant who
did not make a timely objection to an error during the plea
hearing.108 The defendant claimed that the district court failed to
inform the defendant that he could not automatically withdraw his
plea if the court did not accept the Government's sentencing
recommendation.109 The Court held that for a defendant to prevail
in seeking reversal of a guilty plea conviction, the defendant "must
show a reasonable probability that, but for the error, he would not
have entered the plea.""10 The Court stressed the importance of
guilty pleas to the criminal justice system and the accompanying
interest in a final resolution in individual cases."'
Certain principles may be gleaned from the Supreme Court's
treatment of these guilty plea issues. First, the Court has issued
conflicting language regarding whether a plea constitutes a
conviction by itself.112 Second, regardless of whether a guilty plea
amounts to a conviction per se, it does constitute an admission to
all the necessary elements of the crime.1 3 Third, the Court is
loath to conduct factual inquiries on appeal once a plea has been
made and a conviction entered.114 Finally, and perhaps most
importantly, it is unclear whether a challenge to a plea's factual
basis equates to a challenge to Rule 11's requirement for voluntary
and informed pleas.115

III. ANALYSIS

This Part will first address the important considerations

supporting the efficacy and finality of guilty pleas. Also, this Part
will discuss how trends in Supreme Court case law reinforce the

107 Id. at 629.

10 United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).
1o9Id. at 79.
110 Id. at 82-83 (expanding on holdings from United States v. Vonn, 535 U.S. 55 (2002)
and United States v. Timmreck, 441 U.S. 780 (1979)).
nM Id.
112 See supra notes 90, 102 and accompanying text.
113 See supra note 83 and accompanying text.
114 See supra notes 93, 111 and accompanying text.
11 See supra notes 80-81 and accompanying text.
328 GEORGIA LAW REVIEW [Vol. 45:311

position that a guilty plea waives a factual basis challenge. Apart

from factual basis review, courts have recognized other forms of
relief for defendants who plead guilty. These existing grounds for
appeal provide support for the principal assertion that factual
basis challenges should not be permitted because the existing
grounds for appeal allow relief where the factual basis is weak or
nonexistent. Additionally, this analysis will outline the practical
problems of allowing factual basis challenges including the
appellate courts' evaluation of contested facts, evidentiary
problems of remanding a case for trial, and increased appellate
court docket size. This Part will conclude by proffering solutions
to subissues that have divided courts that take the same position
on factual basis challenges, evaluating the possible reasons behind
the circuit split in authority, and discussing whether the two lines
of authority are reconcilable.
A. MAINTAINING THE EFFICACY AND FINALITY OF GUILTY PLEAS

Anytime a defendant is convicted or acquitted, the public

generally assumes the matter is settled. The public may expect
defendants who plead not guilty to appeal their convictions, and if
there were any prejudicial errors in the trial, then their
convictions will be reversed. Defendants who plead guilty can also
appeal their convictions, though possible enumerations of error are
limited by the nature of the plea-no evidentiary rulings or
prejudicial statements made in the course of a trial can provide
grounds for an appeal. 116
Paradoxically, the nature of guilty pleas both encourages and
discourages allowing expansive grounds for appeal. On one hand,
a guilty-pleading defendant is assisting the Government by
cooperating, thereby saving time and resources. A defendant
expects that his cooperation will be rewarded with a reduced
sentence. Perhaps this cooperation should be encouraged by
leaving open channels for a defendant to avoid a wrongful
conviction. On the other hand, the fact that an overwhelming
majority of criminal convictions result from pleas and Rule 11's

116 See FED. R. CRIM. P. 11 (lacking any requirement to call witnesses during the guilty
plea hearing).
2010] WAIVING GOOD-BYE TO INCONSISTENCY 329

requirement for the defendant's intelligent and voluntary

admission to the elements of the crime alleged before entering the
plea, raises the concern that expanding the grounds upon which
these convictions can be appealed thwarts one of their basic
purposes-efficiency. The Supreme Court explained, "Every
inroad on the concept of finality undermines confidence in the
integrity of our procedures; and, by increasing the volume of
judicial work, inevitably delays and impairs the orderly
administration of justice." 17 Consequently, if we expand the law
to allow factual basis challenges on appeal, it will be at the
expense of public confidence and the efficient administration of
justice because more guilty pleas will likely be reversed on appeal.
These reversals will result in a more cumbersome criminal
pleading and appeals process.
In connection with these considerations, the Supreme Court
stated that a valid guilty plea is equivalent to a conviction at
trial."18 This conviction can only be challenged on limited grounds
such as "whether the underlying plea was both counseled and
voluntary" or whether the court lacks power "to enter the
conviction or impose the sentence." 119 These limited grounds for
appeal make sense in light of the Court's view that "no issue of fact
exists" where there is a valid plea. 120 The Court has also
demonstrated an unwillingness to create new grounds for appeal
that will make pleas less reliable and less final.121 In North
Carolina v. Alford, the Court upheld a defendant's decision to
plead guilty against constitutional attack, even though the
defendant proclaimed his innocence in court.122 In a case like

117 United States v. Timmreck, 441 U.S. 780, 784 (1979) (Stevens, J., dissenting) (quoting

United States v. Smith, 440 F.2d 521, 528-29 (7th Cir. 1971)) (internal quotation mark
omitted).
1ns Boykin v. Alabama, 395 U.S. 238, 242 (1969) (citing Kercheval v. United States, 274
U.S. 220, 223 (1927)).
119 United States v. Broce, 488 U.S. 563, 569 (1989).
120 Lott v. United States, 367 U.S. 421, 426 (1961).
121 See Hill v. Lockhart, 474 U.S. 52, 58 (1985) (asserting that new inroads on the finality

of guilty pleas upsets the integrity and efficiency of criminal procedure (quoting Timmreck,
441 U.S. at 784)); McMann v. Richardson, 397 U.S. 759, 774 (1970) (using "the State's
interests in maintaining the finality of guilty-plea convictions" as a policy reason for its
holding).
122 400 U.S. 25, 31, 37-38 (1970).
330 GEORGIA LAW REVIEW [Vol. 45:311

Alford, the factual basis would arguably be lacking under the

Federal Rules of Criminal Procedure because the defendant has
not admitted to the crime.123 The Alford Court, though, did not
permit withdrawal of the plea on constitutional grounds.124
Proponents of factual basis review may argue that the current
trend of circumscribing the grounds for appealing a guilty plea
conviction warrants a concession by the Supreme Court.125
Allowing a factual basis challenge, however, represents an
irreconcilable break from the principles of the Court's guilty plea
jurisprudence of the past forty years.126
Waiver of the grounds for appeal occurs in a variety of contexts
more often, and less ceremoniously, than the waiver of a factual
basis challenge. Appellate courts will hold waived the following
types of challenges: constitutional challenges not made in the
district court,127 challenges to venue,128 and challenges to the
admission of prejudicial evidence not objected to at trial.129 In
these cases, defendants waive these challenges by merely omitting
to raise them in the lower court. Factual basis challenges, which
are not constitutional in nature,130 are not waived by mere
omission to raise the challenge in the lower court, but by a

123 See FED. R. CRIM. P. 11(b)(3) (stating requirement for a factual basis for the plea).
124 Alford, 400 U.S. at 37.
125 See Julian A. Cook, III, Crumbs from the Master's Table: The Supreme Court, Pro Se
Defendants and the Federal Guilty Plea Process, 81 NOTRE DAME L. REV. 1895, 1895 (2006)
('The United States Supreme Court has issued a series of significant rulings that have
fundamentally set back the constitutional and statutory interests of defendants in the plea
bargaining and guilty plea contexts.").
126 Cf. United States v. Ruiz, 536 U.S. 622, 633 (2002) (deciding that defendants who

plead guilty are not entitled to impeachment information from the Government); United
States v. Broce, 488 U.S. 563, 570-71 (1989) (holding that defendants' guilty pleas to two
counts of conspiracy waived their contention that their offense was really one conspiracy);
Brady v. United States, 397 U.S. 742, 747-49 (1970) (affirming the lower court's finding
that the defendant's guilty plea was voluntary even though the defendant misapprehended
the extent of possible punishment).
127 See United States v. McAllister, 77 F.3d 387, 389 (11th Cir. 1996) (noting that

appellate courts have discretion in determining whether to address a constitutional

challenge if raised for the first time on appeal).
128 See United States v. McDonough, 603 F.2d 19, 21-22 (7th Cir. 1979) (foreclosing

defendant's venue challenge for failure to raise it at the outset of the case).
129 See United States v. Abou-Saada, 785 F.2d 1, 8-9 (1st Cir. 1986) (dismissing

defendants' evidentiary challenges due to improper objection).

130 See Barkai, supra note 15, at 92 ("The accuracy requirement for [pleas] stems from
policy rather than constitutional considerations.").
2010] WAIVING GOOD-BYE TO INCONSISTENCY 331

voluntary and knowing act by the defendant-pleading guilty and

thus admitting to the allegations. 131 In this same vein, there is
another argument that the defendant unambiguously waives the
right to dispute the factual basis with the waiver of the right to
trial required by Rule 11(b)(1)(C)1 3 2 in a sedulously conducted plea
hearing. Therefore, in light of the accuracy requirement's
nonconstitutional nature and the affirmative act of pleading guilty
by the defendant, appellate courts should find it difficult to draw a
special distinction authorizing the nonwaiver of the factual basis
challenge given their frequent dismissal of numerous other
challenges.
Considering the desirability of guilty pleas for their low cost in
terms of government and community resources, one potential
criticism of waiver of factual basis challenges is that an
elimination of a ground upon which to challenge a guilty plea may
decrease the number of guilty-pleading defendants.1 33 This
argument makes theoretical sense, but as a practical matter, its
validity would be speculative without further study comparing the
percentage of guilty pleas in jurisdictions allowing factual basis
challenges with the percentage of guilty pleas in jurisdictions
holding factual basis challenges waived by a guilty plea. This Note
will assert that the grounds for appeal already in place largely
obscure the need to recognize factual basis challenges.1 34 Further,
even under the assumption that waiver of factual basis challenges
will result in more not-guilty pleas, such a reduction might
promote the interests of justice by discouraging factually innocent
defendants from pleading guilty in the trial court with the
expectation of challenging the conviction on appeal.

131 See McCarthy v. United States, 394 U.S. 459, 466 (1969) (calling a guilty plea an
admission to charges against a defendant).
132 See FED. R. CRIM. P. 1 1(b)(1)(C) (requiring the courts to inform defendants of "the right

to a jury trial").
133 See Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure,
43 IND. L. REV. 691, 695 (2010) (discussing potential inverse relationship between
restriction of guilty pleas and frequency of guilty pleas).
134 See infra Part III.B.
332 GEORGIA LAW REVIEW [Vol. 45:311

B. ALTERNATE FORMS OF RELIEF AVAILABLE TO DEFENDANTS

A second rationale in support of waiver relates to the

availability of alternate forms of relief for a guilty-pleading
defendant. While a guilty plea removes the Government's
obligation to prove guilt beyond a reasonable doubt, the plea does
not "strip a defendant of all the protections against unfair or
improper methods that might be employed against him in the plea
process."135
An ineffective assistance of counsel claim can be used to
establish that a guilty plea was involuntary and unintelligent. 136
The Supreme Court has articulated a two-part test for ineffective
assistance in the guilty plea context.' 37 With respect to the first
part of the test, if a defendant's alleged criminal conduct did not
amount to a cognizable offense, then his counsel's advice to plead
guilty could fall below "the range of competence demanded of
attorneys in criminal cases."38 The defendant would then need to
satisfy the second half of the test by demonstrating that counsel's
errors were the but-for cause of the conviction.139 If the goal is to
protect defendants who plead guilty without realizing that their
conduct amounts to an offense, then defense counsel is in the best
position to prevent this pitfall.140 Unsurprisingly, defendants
sometimes choose to assert ineffective assistance of counsel claims
in conjunction with a challenge to a guilty plea's factual basis.141

1a5 Barkai, supra note 15, at 88-89.

136 Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (quoting Tollett v. Henderson, 411 U.S. 258,
267 (1973)).
137 See id. at 57 (adopting two-part test from Strickland v. Washington, 466 U.S. 668
(1984) for ineffective assistance of counsel claims).
13s McMann v. Richardson, 397 U.S. 759, 771 (1970); see also id. (noting that courts should
generally ensure that the constitutional right to counsel serves its purpose by "striv[ing] to
maintain proper standards of performance by attorneys who are representing defendants in
criminal cases in their courts").
139 Strickland, 466 U.S. at 694.
140 See United States v. Vonn, 535 U.S. 55, 73 n.10 (2002) (articulating defense counsel's
obligation to understand proper guilty plea procedure); Scott & Stuntz, supra note 6, at
1954 ("The prosecutor and defense attorney have far better information about the
probability of conviction than the judge, whose knowledge of the case is limited to the
papers the parties filed with the court.").
141See, e.g., United States v. Johnson, 89 F.3d 778, 784-85 (11th Cir. 1996) (considering
the defendant's ineffective assistance claim after refuting his factual basis claim).
2010] WAIVING GOOD-BYE TO INCONSISTENCY 333

The defendant may also employ the related, though somewhat

broader, challenge of directly attacking the plea's voluntary or
intelligent character. Voluntariness and understanding, unlike
factual basis, "are well-established constitutional prerequisites to
a valid guilty plea."14 2 The voluntariness requirement ensures
that the defendant does not offer a plea due to "impermissible
pressures."143 The intelligence requirement guarantees that "the
defendant understands the nature of the charge and the
consequences of his plea." 144 This type of challenge might arise
where the defendant is unaware of the factual requirements of the
crime and prejudiced by the district court's failure to assess the
specific alleged facts during the guilty plea hearing.145 A
meritorious voluntariness challenge could also be made if the plea
is wrongly obtained through "force, threats, or promises."146 An
involuntary plea, however, need not be strictly confined to force or
threats.147 These grounds for appeal are available to a defendant
when he pleads guilty despite an absence of sufficient basis in
fact.14 8
Proponents of the factual basis challenge may argue that it is
conceivable for an innocent defendant to plead guilty without a
basis in fact for the charged crime and not succeed in reversing the
conviction under one of these grounds for appeal.149 Although few
things are more unsettling than punishing an innocent party, the
case envisioned by these critics entails a defendant, with
satisfactory assistance of counsel or who has refused counsel, who

142 Barkai, supra note 15, at 89-92.

143 Id. at 90-91.
144 Id. at 90.
145 See FED. R. CRIM. P. 11(b)(1)(G) (requiring that courts ensure that defendants

understand "the nature of each charge"); id. at 11(b)(3) (specifying the court's obligation to
determine a factual basis for a guilty plea).
146 See id. at 11(b)(2) (delegating to the court the responsibility of determining that the
plea did not result from coercion).
147 See McCarthy v. United States, 394 U.S. 459, 471-72 (1969) (reversing a conviction for
failure to comply with Rule 11 when the trial court failed to address the defendant
personally to make sure the defendant understood the nature of the charge and
consequences of his guilty plea).
148 See id. at 466 ("[Ihf a defendant's guilty plea is not equally voluntary and knowing, it
has been obtained in violation of due process and is therefore void.").
149 See Cook, supra note 125, at 1900, 1905 (criticizing the increased speed with which
pleas are conducted and questioning the obligations often imposed on defense counsel).
334 GEORGIA LAW REVIEW [Vol. 45:311

intelligently and voluntarily pleads guilty in accordance with

prescribed procedures, despite his innocence. A defendant in these
circumstances has likely resolved to plead guilty in spite of these
safeguards and his factual innocence. At some level, individual
autonomy and responsibility for knowing and voluntary acts must
be respected, and the court should not force a trial on an accused
through an unwarranted reluctance to accept the plea.150 After all,
courts will not reverse the conviction of a defendant who makes a
voluntary and informed choice to plead not guilty, receives an
adverse result at trial, and subsequently claims that he wishes to
return to the pleading stage to plead guilty in order to obtain a
more favorable outcome.
Regarding concerns with the possibility of factually innocent
defendants slipping through the cracks, perhaps courts can
remedy this problem by conducting the plea hearing in a way that
better ensures the integrity of the plea. This procedure begins
with the defendant relating "the facts as he knows them," which
will give the court a better idea of how to conduct the inquiry once
the defendant finishes his statement.15 1 In this case, defendants
will "ravel out [their] weaved-up follies" 152 on their own. This
practice might make it more difficult for an innocent defendant to
subject himself to conviction as compared to a more rigid Rule 11
hearing in which the defendant simply admits guilt to a litany of
elements comprising the charged crime.
C. PRACTICAL PROBLEMS WITH ALLOWING FACTUAL BASIS REVIEW

The third concern for permitting factual basis challenges

pertains to the practical problems associated with ruling on

150 See Scott & Stuntz, supra note 6, at 1925-28 (arguing that paternalistic intervention
into defendants' ability to plead guilty may undermine the interests of criminal defendants
collectively); see also North Carolina v. Alford, 400 U.S. 25, 37 (1970) (acknowledging that
some innocent defendants may determine that they have "much to gain by pleading" and
little or "nothing to gain by trial," so defendants in such cases should not be forced into
trial).
161 See Barkai, supra note 15, at 135-36 (endorsing this approach as the best way to
ensure the accuracy of the plea); see also Michael M. O'Hear, Plea Bargaining and
ProceduralJustice, 42 GA. L. REv. 407, 436 (2008) ("[D]efendant voice may help to produce
timely information that prevents wrongful convictions or disproportionate punishments.").
162 WILLIAM SHAKESPEARE, THE TRAGEDY OF KING RICHARD THE SECOND act 4, sc. 1.
2010] WAIVNG GOOD-BYE TO INCONSISTENCY 335

challenges to guilty pleas. First, factual basis challenges may be

asserted in conjunction with other, overlapping grounds for
appeal, 153 thereby increasing the number of issues and amount of
material judges must wade through in considering guilty plea
appeals. This increased docket is unnecessary since a factually
innocent appellant, who made an error by pleading guilty, would
likely succeed under one of the universally recognized challenges
discussed above.154
In addition to the increased docket, appellate courts face other
problems when delving into the facts underlying guilty pleas,
including the lack of facts available for review. In a trial, both
sides will spend a significant amount of time and resources
gathering witnesses and evidence in preparation for an adversarial
proceeding. As a result, there is a kind of factual basis appeal
available to a defendant convicted at trial.155 However, unlike a
sufficiency of the evidence review after a trial, convictions obtained
through guilty pleas do not require parties to develop as much
evidence as they would for a trial. The absence of a developed
evidentiary record renders an appellate review on this point
uninformed. One might even argue that a defendant challenging
the plea's factual basis on appeal has gained an advantage on the
Government-the defendant disputes factual grounds in the
appellate court after pleading guilty to the offense in the district
court. The Government faces greater difficulty in establishing the
factual basis in the appellate court because it has been relieved of
its burden to gather evidence to prove guilt beyond a reasonable
doubt in the proceeding below-and the defendant has obtained a
more favorable punishment. 56
For example, suppose a defendant is arrested for transporting
and selling cocaine in interstate commerce. The defendant pleads

1s See supra Part III.B.

154 See supra Part III.B.
155 See Jackson v. Virginia, 443 U.S. 307, 317 (1979) ("[A] properly instructed jury may
occasionally convict even when it can be said that no rational trier of fact could find guilt
beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. In a
federal trial, such an occurrence has traditionally been deemed to require reversal of the
conviction.").
156 See Scott & Stuntz, supra note 6, at 1909 ("Defendants who bargain for a plea serve

lower sentences than those who do not.").

336 GEORGIA LAW REVIEW [Vol. 45:311

guilty and subsequently challenges the factual basis for the plea
on appeal. The appellate court concludes that the evidence
adduced by the guilty plea proceeding does not point to the
defendant transporting or selling the drugs in interstate
commerce. However, in pleading guilty, the defendant knew or
suspected that if he went to trial the Government would locate and
examine a coconspirator in preparation for trial who would testify
that the defendant had transported and sold the contraband in
interstate commerce.
This hypothetical presents two additional problems. First, the
defendant who pled guilty and succeeded in having his conviction
reversed for lack of a factual basis manipulated the legal system to
gain an upper hand due to the passage of time while the appeal
was processed. As one court noted, "The erosion of memory and
the dispersal of witnesses may well make a new trial difficult or
even impossible. If the latter is the case, an admitted perpetrator
will be rewarded with freedom from prosecution." 5 Second,
reversal of a conviction on technical grounds as in the hypothetical
imposes costs on society. Judges, juries, witnesses, and lawyers
must commit further time and resources to the repetition of
proceedings. 58 Victims must "re-live frequently painful
experiences in open court" after mistakenly believing that the
guilty plea closed the case. 59 Conversely, a rule prohibiting
factual basis appeals after a valid guilty plea may discourage
defendants from manipulating the integrity of the justice system
in such a manner and provide a disincentive for innocent
defendants to plead guilty.
Another practical problem with permitting review of factual
basis challenges is the lack of an ascertainable standard for the
factual determination in the lower court. Neither the Federal
Rules of Criminal Procedure nor Supreme Court case law provides
a standard for district courts to use in determining what
constitutes an adequate factual basis-that is, how much of a

1'5 Earl G. Penrod, The Guilty Plea Process in Indiana: A Proposal to Strengthen the
DiminishingFactualBasis Requirement, 34 IND. L. REV. 1127, 1147 (2001) (quoting State v.
Eiland, 723 N.E.2d 863, 865 (Ind. 2000)).
15s Id.

159 Id.
2010] WAIVING GOOD-BYE TO INCONSISTENCY 337

factual basis is sufficient to insulate a guilty plea from attack. 160

One author suggested that the directed verdict standard should be
used, 161 though this standard is not codified in the rules. The
highly contextual and subjective nature of the plea hearing
explains the absence of a standard.1 62 Tied closely to the
subjectivity of the hearing is the district court's broad discretion to
determine precisely how many facts are needed for a valid factual
basis.163 Given the subjective and contextual nature of plea
proceedings, can appellate courts' review of the factual basis be
any more reliable than the determinations of district court judges,
especially when the district court must observe and question the
defendant?1 64
A final practical problem with allowing factual basis challenges
is the low probability of success for an appellant.165 A low
probability of success per se is not necessarily a sufficient
justification for disallowing these challenges. Nevertheless, given
the plea's presumptive validity 66 and the unwillingness of courts
to upset valid guilty pleas,167 few convictions will be reversed
under a theory of insufficient factual basis that would not also be
reversed under another recognized theory.
As mentioned before, a possible criticism of factual basis waiver
is that it may result in more trials. 68 A greater number of trials
may weaken the argument advanced by proponents of waiver of
the factual basis challenge that this waiver conserves judicial
resources. Some authors, however, believe that more trials would

16o Barkai, supra note 15, at 122-23.

161 See id. at 132 (proposing that a guilty plea should be established "under a standard of
proof equivalent to the proof necessary to defeat a motion for a directed verdict of acquittal
for the crime to which the defendant pleads").
162 See id. at 123 (attributing "nonexistent" standard of proof in part to "subjectivity
inherent in Rule 11").
163 See id. at 123-24 (describing the "wide discretion" of district courts "to accept or reject

guilty pleas").
'- See FED. R. CRIM. P. 11(b)(1) (requiring the court to "address the defendant personally
in open court").
165 See McCarthy v. United States, 394 U.S. 459, 465 (1969) (stating that post-conviction
attacks on validity of guilty pleas, even constitutional attacks, are "often frivolous").
166 See Camillo v. Wyrick, 640 F.2d 931, 936 (8th Cir. 1981) ("A guilty plea entered with
the assistance of counsel is presumptively valid.").
167 See supra notes 93, 111 and accompanying text.

168 See supranote 133 and accompanying text.

338 GEORGIA LAWREVIEW [Vol. 45:311

better serve the interests of justice.169 Still, it remains unclear

whether the "more trials" criticism of factual basis waiver is valid.
This uncertainty persists because even under the assumption that
more defendants will plead not guilty if they cannot appeal the
factual basis, there will still be resources expended in litigating
the issue on appeal. When an appellate court reverses the
conviction, a new trial may take place-one thing those in favor of
factual basis review sought to avoid by making the issue
appealable.
D. OTHER ISSUES RELATING TO FACTUAL BASIS CHALLENGES

The federal circuits further disagree over, among other things,

the proper standard of review for the factual basis findings of the
lower court and whether a court possesses the power to dismiss
the appeal as waived or if the Government must expressly contend
that the challenge is waived by the guilty plea. As previously
noted, jurisdictions holding factual basis challenges waived differ
in the exhaustiveness with which they treat the issue.170 Some
courts quickly move to other contentions after briefly stating that
the challenge has been waived,171 while other courts feel obliged to
explain why the basis is not deficient if the court permitted such a
challenge. 7 2 Proponents of factual basis review may seize upon
this discrepancy as a sign of judicial discomfort with categorical
dismissals for these challenges. However, these differing
approaches are likely the product of a particular circuit judge's
preference for straightforward and concise opinions versus more
thorough and ironclad opinions.
An unresolved issue of more gravity is the proper standard of
review by an appellate court for a lower court's assessment of the
factual basis. If a jurisdiction entertains factual basis

169 See O'Hear, supra note 151, at 453-54 (discussing the possible advantages of jury

trials over plea bargains for defendants). But see Penrod, supra note 157, at 1130 ("If every
criminal charge were subjected to a full-scale trial, the States and the Federal Government
would need to multiply by many times the number of judges and court facilities." (quoting
Santobello v. New York, 404 U.S. 257, 260 (1971))).
us See supra notes 64-70 and accompanying text.
171 See supra notes 66-68 and accompanying text.

172 See supra notes 64-65 and accompanying text.

2010] WAIVING GOOD-BYE TO INCONSISTENCY 339

challenges-in contravention of the main position argued in this

Note-then a clear error standard of review 73 constitutes the
proper standard because this standard applies to the factual
findings of trial courts in other contexts. 174 The Fifth and Tenth
Circuits already take this position. 75 A clear error standard gives
some deference to the lower court by recognizing that trial courts
are in the best position to interact with the parties, determine
credibility, and assess the adequacy of the evidence.
Some courts, however, adopt an abuse of discretion standard. 176
While an abuse of discretion standard is arguably better than a de
novo review in this context since district judges are exercising a
degree of discretion in determining whether to accept a plea, abuse
of discretion applies to context specific issues like the admission or
exclusion of evidence' 77 rather than factual determinations.
Therefore, review for clear error constitutes the proper amount of
deference to the trial court's factual determinations if appellate
courts decide to conduct a factual basis review.
Finally, it remains unclear whether the government must
actually argue for waiver in order for the court to hold a factual
basis challenge waived.178 In other words, can a court find a
factual basis challenge waived by a defendant even if the
Government chooses to meet the challenge on its merits? The best
answer to this question is yes. Under this approach, appellate

173 See United States v. Barnhardt, 93 F.3d 706, 710 (10th Cir. 1996) ("[A] finding of fact
is not clearly erroneous unless it is without factual support in the record or, after reviewing
all the evidence, we are left with a definite and firm conviction that a mistake has been
made." (citing Exxon Corp. v. Gann, 21 F.3d 1002, 1005 (10th Cir. 1994))).
174 See 18 U.S.C. § 3742(e) (2006) ('The court of appeals ... shall accept the findings of
fact of the district court unless they are clearly erroneous. . . ."); Barkai, supra note 15, at
124 ("The courts of appeals regularly defer to a trial judge's exercise of discretion [in a plea
proceeding] unless it is clearly erroneous.").
175 See United States v. Baymon, 312 F.3d 725, 728 (5th Cir. 2002) (applying the "plain

error standard" to factual basis review (citing United States v. Vasquez, 216 F.3d 456, 459
(5th Cir. 2000))); United States v. Graves, 106 F.3d 342, 343 (10th Cir. 1997) (using the
"clearly erroneous" standard of review (citing Barnhardt,93 F.3d at 708-09)).
176 See, e.g., United States v. Adams, 448 F.3d 492, 498 (2d Cir. 2006) (reviewing the
district court's determination of a factual basis for the guilty plea for an abuse of discretion
(citing United States v. Gonzalez, 420 F.3d 111, 120 (2d Cir. 2005))).
177 See Gen. Electric Co. v. Joiner, 522 U.S. 136, 141 (1997) (noting that the abuse of
discretion standard is proper for all evidentiary rulings (citing Old Chief v. United States,
519 U.S. 172, 174 n.1 (1997))).
178 See supra notes 76-79 and accompanying text.
340 GEORGIA LAW REVIEW [Vol. 45:311

courts have the discretion to hold the basis for the appeal waived
even where the Government elects to argue the merits of the
factual basis challenge. This approach provides the greatest
amount of freedom to the involved parties by permitting the court
and the litigant to choose the issues to address with fewer
constraints. If the court can assess the waiver issue sua sponte,
the Government may forgo the waiver argument to pursue a less
expeditious but probably the more thorough route by meeting the
defendant's factual basis challenge on the merits. Similarly, a
court may choose to hold a meritless appeal waived to save time
and resources, even if the Government only addresses the
merits. 179 The main import of this approach: an appellate court is
not obliged to consider waiver unless the Government argues for
it, but the court may act in the interest of justice to address waiver
even if the issue of waiver is not raised by the parties.
E. DIFFERENTIATING THE ADEQUACY OF THE FACTUAL BASIS FROM
THE REQUIREMENTS OF RULE 11

Finally, some of the conflict between circuits might be resolved

by drawing a distinction between a factual basis challenge and a
contention of noncompliance with Rule 11(b)(3), which requires
courts to determine that a factual basis exists for the plea.
Some courts that allow factual basis review assert that they are
reviewing for Rule 11 compliance.180 However, factual basis
challenges and Rule 11 challenges should be differentiated. A
court addressing an issue of Rule 11(b)(3) compliance should focus
its inquiry exclusively on the guilty plea hearing transcript. The
adequacy of the district court's colloquy with the defendant should
be the primary concern of the appellate court because the rule
requires the district court to explain the nature of each charge and
ensure the defendant's understanding of the charges.' 8 '

179 It might be proper to qualify this statement by explaining that, ideally, a court will

address the issue in the manner in which it is framed-reaching the merits if that is how
the government chooses to meet the defendant's challenge.
1so See United States v. McKelvey, 203 F.3d 66, 70 (1st Cir. 2000) (purporting to
determine Rule 11 compliance while reviewing the defendant's factual basis challenge to his
guilty plea).
181FED. R. CRIM. P. 11(b)(1)(G).
2010] WAIVING GOOD-BYE TO INCONSISTENCY 341

On the other hand, factual basis challenges require an appellate

court to review the facts alleged and the often undeveloped
evidence in the case. Reweighing evidence supporting a guilty
plea is not a function appellate courts are intended to perform,182
nor is a review of the evidentiary record useful in this context
since the evidence in the case may be undeveloped or corrupted by
the passage of time. 83 Instead, appellate courts should cut the
Gordian Knot by dismissing the factual basis challenge rather
than reweighing an indeterminate factual record. Moreover, Rule
11 is designed to curtail the need for appellate courts to conduct
highly subjective fact-finding exercises. 184 Some federal
jurisdictions already recognize and apply this distinction.185
To some extent, this Note contemplates a case in which the
defendant admits to the requisite factual elements of the crime in
the district court only to disavow the sufficiency of the factual
admissions on appeal. In a different case, perhaps there would be
a remedy where the district court conducts a procedurally
defective guilty plea colloquy resulting in prejudice to the
defendant 86 as provided by Rule 11(h). 8 7 However, a defendant's
claim that a voluntary and knowing guilty plea lacks a factual
basis should not be confused with the requirements of Rule 11; the
factual basis challenge should be barred from appellate review.

IV. CONCLUSION

The issue addressed by this Note is relatively simple given the

nebulous legal authority it has engendered. Whether the
adequacy of the factual basis for a guilty plea may be challenged
on appeal is an issue that can and should be resolved by the

182 See supra note 12 and accompanying text.

183 See supra notes 157-59 and accompanying text.
184 See supra note 12 and accompanying text.
185 See United States v. Willis, 992 F.2d 489, 490-91 (4th Cir. 1993) (holding the factual
basis challenge waived after initially noting that "the district court conducted an
unexceptionable Rule 11 colloquy").
186 This being confined to a narrow set of cases in which the court either fails to conduct a

factual inquiry or substantially deviates from an accurate statement of the law-to the
extent that such a defect renders the plea involuntary or unintelligent.
187 See FED. R. CRIM. P. 11(h) ("A variance from the requirements of this rule is harmless

error if it does not affect substantial rights.").

342 GEORGIA LAW REVIEW [Vol. 45:311

analysis set forth above. The Supreme Court should take its next
opportunity to provide a lodestar in this area of the law.
In Part II, this Note explained the background of this issue.
Part II provided a brief overview of the procedures and safeguards
involved in the guilty plea process as well as an introduction of the
split in circuit court authority on this issue. It also discussed
peculiarities in the circuit court's respective analyses. The
background concluded with a study of the Supreme Court's guilty
plea jurisprudence and presented some of the conflicting interests
implicated by this issue-most notably, society's stake in the
timely and final resolution of criminal cases, and the protection of
criminal defendants' due process right to enter voluntary and
intelligent guilty pleas.
Part III set forth various arguments in support of the positions
taken by the Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits.
These arguments included the maintenance of public faith in the
effect and finality of guilty pleas. Cases from the Supreme Court's
guilty plea jurisprudence expressly endorse this significant policy
interest. Additionally, a factually innocent, guilty-pleading
defendant is not doomed without recourse merely because he
cannot appeal the lack of factual basis for the plea; other avenues
already exist through which the defendant might proceed
successfully. Further, numerous practical problems make factual
basis review an untenable choice in this context. Among these
problems are the corruption of potential trial evidence over time,
an increase in unnecessary or frivolous appeals, and the demand
on already heavy judicial case loads. In view of these
considerations, the federal courts should not entertain challenges
to the adequacy of the factual basis for crimes that defendants
have knowingly and voluntarily confessed to in court.
This position, if followed, will further the all-important goal of
uniformity in federal criminal procedure. In a more practical
sense, it will assist attorneys, defendants, and judges making
crucial decisions during the pleading and appellate stages of
criminal proceedings.

William T. Stone, Jr.