Petition for Writ of Certiorari — Oscar Garcia, Petitioner v. United States

APPENDIX A

Tenth Circuit Court of Appeals Order

Appellate Case: 18-2060 Document: 010110222702 _ Date Fila, Q/042Ai CoahFishpeats

Tenth Circuit

PUBLISH September 4, 2019

Elisabeth A. Shumaker

UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 18-2060

OSCAR GARCIA, also known as “O”,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. 2:16-CR-01601-RB-3)

Deborah L. Roden, Woodhouse Roden Nethercott, LLC, Cheyenne, Wyoming, for

Appellant.

Finnuala Tessier, United States Department of Justice, Appeals Section, Criminal

Division, (John C. Anderson, United States Attorney, and C. Paige Messec,

Assistant United States Attorney, United States Attorney Office, Albuquerque,

New Mexico, with her on the brief), Washington, D.C., for Appellee.

Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit

Judges.

TYMKOVICH, Chief Judge.

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This case requires that we resolve whether federal magistrate judges can

accept and enter guilty pleas in criminal proceedings where the parties have

consented to appearing before the magistrate judge. Longstanding precedent says

they can do so. In United States v. Ciapponi, 77 F.3d 1247, 1251 (10th Cir.

1996), we held that “with a defendant’s express consent, the broad residuary

‘additional duties’ clause of the Federal Magistrates Act authorizes a magistrate

judge to conduct a Rule 11 felony plea proceeding, and such does not violate the

defendant’s constitutional rights.” But in this case, Mr. Oscar Garcia argues that

this precedent has been abrogated by subsequent changes to the Federal Rules of

Criminal Procedure, and that only district court judges can accept pleas we deem

to be dispositive. He contends these changes to the Rules allow him to withdraw

his previously accepted plea of guilty as a matter of right.

While Garcia’s argument is persuasive, we are bound by our prior

precedent. For that reason, we affirm the district court.

I. Background

Garcia was charged by indictment with money laundering, conspiracy to

possess with intent to distribute a controlled substance, and possession with intent

to distribute a controlled substance. Following plea negotiations, the government

filed an information, charging Garcia with only two counts: conspiracy to possess

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with intent to distribute a controlled substance and money laundering. The parties

entered into a plea agreement with a stipulated sentence of 180 months.

Garcia consented to appearing before a federal magistrate judge for his

change of plea hearing the same day. After Garcia’s change-of-plea hearing

before the magistrate judge, but prior to his sentencing before the district judge,

Garcia moved to withdraw his plea. The magistrate judge did not make a written

Tecommendation nor did the clerk of court file a notice as to any objections to the

magistrate judge’s recommendation.

In support of his motion to withdraw, Garcia argued that the Federal

Magistrates Act of 1968 does not authorize a magistrate judge to accept a felony

guilty plea if the plea is considered a “dispositive matter” under Federal Rule of

Criminal Procedure 59. This rule states that a “district judge may refer to a

magistrate judge for recommendation of a defendant’s motion to dismiss or quash

an indictment or information, a motion to suppress evidence, or any matter that

may dispose of a charge or defense.” Fed. R. Crim P. 59 (emphasis added).

Thus, Garcia contended he should be permitted to withdraw his guilty plea as a

matter of right under Federal Rule of Criminal Procedure 11(d)(1), which allows

withdrawal “for any reason or no reason” before the court accepts the plea.

The government, in response, relied on Ciapponi, 77 F.3d at 1251, where

we held that the Federal Magistrates Act authorizes a magistrate judge to accept a

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felony guilty plea with the defendant’s consent. The district court agreed and

concluded Garcia was not entitled to withdraw his plea as a matter of right. The

district court also determined that there was no fair or just reason to allow Garcia

to withdraw his guilty plea.

In an unusual turn of events, the government then moved the district court

for reconsideration of the defendant’s motion, and urged that it be granted. The

government argued a magistrate judge cannot accept a felony guilty plea under the

language of Rule 59 of the Rules of Criminal Procedure, which had been adopted

after we decided Ciapponi. The government thus disavowed its previous reliance

on Ciapponi and other Tenth Circuit cases that predated the promulgation of Rule

59.

Relying on our precedent in Ciapponi, the district court denied the parties’

request to allow Garcia to withdraw his guilty plea.

Il. Analysis

The Federal Rules of Criminal Procedure outline two ways for a criminal

defendant to withdraw a guilty plea. If the court has not yet accepted the plea, the

defendant can withdraw it “for any reason or no reason.” Fed. R. Crim. P.

11(d)(1). But if the court has accepted the plea, the defendant may only withdraw

it if he “can show a fair and just reason for requesting the withdrawal.” Fed. R.

Crim. P. 11(d)(2)(B). Garcia contends the magistrate judge lacks the authority to

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accept a felony guilty plea in the first place, so no plea can be accepted by a

magistrate judge for purposes of Rule 11. Thus, he seeks to withdraw his guilty

plea as a matter of right under Rule 11(d)(1).

While Garcia acknowledges our decision in Ciapponi allows magistrate

judges to accept pleas, he argues that the promulgation of Rule 59 fatally

undercuts Ciapponi’s reasoning. Rule 59 allows district courts to refer both

dispositive and nondispositive matters to magistrate judges. But the rule requires

magistrate judges to issue reports and recommendations to the district judge on all

dispositive matters.

Before turning to the merits, we consider the government’s contention that

Garcia not only forfeited his Rule 59 argument, but that he affirmatively waived

this claim by failing to raise it before the district court.

A. Forfeiture

Garcia contends that since the government raised this argument in its

motion to reconsider, he implicitly adopted the argument by not objecting, and

thus preserved it for appeal.

As a general matter, arguments not raised before the district court are

forfeited on appeal. See Richison v. Ernest Group, Inc., 634 F.3d 1123, 1127-28

(10th Cir. 2011). On appeal, we can only consider forfeited arguments under the

plain error standard of review. Id. But if a defendant does not argue for plain

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error in his opening brief on appeal, he waives any plain error argument. See

McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010) (stating that “defendants

waive [t]he arguments in this court” if they forfeit an argument below and fail to

“explain in [the] opening appellate brief . . . how they survive the plain error

standard”).

We acknowledge that Garcia did not explain how he survives plain error in

his opening appellate brief. But that is because the issue was preserved below.

The question we ask is “whether the district court was adequately alerted to the

issue.” United States v. Harrison, 743 F.3d 760, 763 (10th Cir. 2014). Although

Harrison involved a defendant’s objections at a sentencing hearing, rather than

objections or new arguments after the hearing, Harrison aims to protect the

district court’s decision on appeal. That is, the appellate court cannot review

issues and arguments that the district court never had an opportunity to consider.

But if the district court was “adequately alerted to the issue,” and perhaps even

responded to the issue, then we are able to review on appeal. In this case, the

district court chose to address the government’s new Rule 59 argument. Even

though the district court denied the motion because the arguments were untimely,

the district court rejected the new argument on the merits. The district court, and

the parties, were alerted to the new argument, and both parties have continued to

address this argument on appeal.

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We also acknowledge that motions for reconsideration are generally not

appropriate vehicles in which to raise new arguments. See United States v.

Verner, 659 F. App’x 461, 467 (10th Cir. 2016); Braswell v. Cincinnati Inc., 731

F.3d 1081, 1093 (10th Cir. 2013). These motions are not the place to relitigate

already-resolved issues but rather to point out errors or newly discovered

evidence. See Fed. R. Civ. P. 60(b).! The circumstances of this case, however,

watrant a departure from the general rule. Here, the government did not simply

raise a new theory or argument. In the motion to reconsider, the government

entirely changed its position. Whereas initially the government objected to

Garcia’s motion to withdraw his guilty plea, the government later argued that

Garcia should be able to withdraw his guilty plea. Now on appeal, the

government has changed positions once again, arguing that Garcia should not be

able to withdraw his guilty plea. Perhaps if the government had not objected to

Garcia’s initial motion to withdraw but had agreed with Garcia from the start, the

district court might have granted Garcia’s motion.

As the district court noted, this is a “highly unusual situation,” and

arguments raised in motions to reconsider are usually forfeited on appeal. But in

this case, we are able to consider Garcia’s Rule 59 argument. Both parties have,

’ Because the Federal Rules of Criminal Procedure do not provide for

motions to reconsider, courts look to Federal Rules of Civil Procedure 59 and 60

for guidance.

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at some point in the proceedings, advocated for this argument, and the district

court fully addressed the argument on the merits. Accordingly, Garcia is entitled

to challenge the ruling on appeal.

B. The Authority of Federal Magistrate Judges

The “Judicial Power” of the United States is established in Article III of the

Constitution. It states:

The judicial power of the United States, shall be vested in one Supreme

Court, and in such inferior courts as the Congress may from time to

time ordain and establish. The judges, both of the supreme and inferior

courts, shall hold their offices during good behaviour, and shall, at

stated times, receive for their services, a compensation, which shall not

be diminished during their continuance in office.

U.S. Const. Art. TI, § 1 (alteration in original). In addition to creating and

expanding circuit and district courts under Article III, since the Founding,

Congress has utilized its power to create what we call Article I courts or

tribunals. The officers of these courts are statutorily authorized, and they preside

over certain types of proceedings. For example, the United States Tax Court

oversees federal income tax disputes, the United States Court of Federal Claims

oversees contract disputes against the federal government, and the United States

Bankruptcy Courts over see bankruptcy cases.

Federal magistrate judges present an interesting hybrid—they are a product

of both Article I and Article III. On one hand, they are authorized by Congress,

and the scope of their authority is guided by statute. On the other, they exist and

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perform their duties exclusively within Article III district courts, and they are

expressly authorized to oversee criminal proceedings.

Although Congress has set forth the authority of federal magistrate judges

by statute, the scope of the authority is often directed or supervised by the Article

III district judges. To determine whether the acceptance of felony guilty pleas

falls within the scope of their authority, we therefore must examine how their

duties are guided by the Constitution, the Federal Magistrates Act, and the

Federal Rules of Criminal Procedure.

1. The Constitution

Before discussing the grant of authority in the Federal Magistrates Act, it is

important to recognize the constitutional limitations of magistrate judges.

Magistrate judges are created by Congress under Article I, Section 8 of the

Constitution. As we discuss below, the Supreme Court has recognized limits on

Article I tribunals that exercise the constitutional duties of Article III courts.

Article II protects the judiciary by “barring congressional attempts to

transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating

constitutional courts, and thereby preventing the encroachment or aggrandizement

of one branch at the expense of the other.” Commodity Futures Trading Comm'n

v. Schor, 478 U.S. 833, 850 (1986) (internal citations and quotations omitted).

The judicial power given to Article III courts extends to

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all cases, in law and equity, arising under this Constitution, the laws of

the United States, and treaties made, or which shall be made, under

their authority;—to all cases affecting ambassadors, other public ministers and consuls;—to alli cases of admiralty and maritime jurisdiction;

—to controversies to which the United States shall be a party;—to controversies between two or more states;—between a state and citizens of

another state;—between citizens of different states;—between citizens

of the same state claiming lands under grants of different states, and

between a state, or the citizens thereof, and foreign states, citizens or

subjects... .

The trial of all crimes, except in cases of impeachment, shall be by jury;

and such trial shall be held in the state where the said crimes shall have

been committed; but when not committed within any state, the trial shall

be at such place or places as the Congress may by law have directed.

U.S. Const. art. III. § 2 (alteration in original). When analyzing a magistrate

judge’s authority, we must look to the kind of authority the magistrate judge is

exercising and ask whether that authority falls within the scope of the judicial

power vested in Article III. See William Baude, Adjudication Outside Article III,

133 Harv. L. Rev. (forthcoming 2020).

2. Federal Magistrates Act

To understand the scope of a magistrate judge’s authority, it is useful to

review the history and development of our magistrate judge program. In the very

early days of the United States, Congress authorized “commissioners” to assist

and take on certain duties. See, e.g., Act of March 2, 1793, ch. 22, § 4, 1 Stat.

334 (allowing “discreet persons learned in the law” to accept bail). Congress

later created a more formal system when it passed the United States

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Commissioners Act of 1896, which established the position of “commissioner”

and created a uniform fee schedule for the commissioners. Act of May 28, 1896,

ch. 252, 29 Stat. 184 (repealed 1948).

Eventually the system of commissioners was replaced by the federal

magistrates program, which was authorized by the Federal Magistrates Act of

‘1968. In this Act, Congress created a more uniform system and increased the

authority exercised by the magistrate judges. It added provisions that gave

magistrate judges the authority to oversee “minor offenses” and take on

“additional duties as are not inconsistent with the Constitution and laws of the

United States.” 28 U.S.C. § 636(b)(3). Among other things, magistrate judges

were also empowered to preside over jury trials of civil matters or criminal

misdemeanors. Section 636(b) authorizes district courts to designate other

matters to magistrate judges, for example, motions for summary judgment,

motions to certify a class action, and motions to suppress evidence.

The Act specifies different levels of judicial review by the district court

depending on the kind of matter resolved by the magistrate judge. More

significant matters are subject to de novo review, whereas other matters are only

subject to a clearly erroneous standard. Thus, for example, a motion for summary

judgment would require de novo review but discovery sanctions would only

tequire review for clear error. See Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th

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Cir. 1997). While the Act is explicit in stating that district judges can refer

certain matters to magistrate judges, the statute left open the opportunity to

designate “such additional duties as are not inconsistent with the Constitution and

laws of the United States.” 28 U.S.C. § 636(b)(3). The so-called “additional

duties clause” is the source of authority for magistrate judges to assist courts with

duties not explicitly mentioned in the Federal Magistrates Act.

The Supreme Court has examined the “additional duties” clause in but a

few cases. The first, Wingo v. Wedding, 418 U.S. 461, 472-73 (1974), held that

magistrate judges cannot oversee habeas corpus proceedings. The Court found

that Congress, in its legislation governing federal habeas procedures, did not

allow United States commissioners to preside in such matters. Because

magistrate judges function similarly to commissioners, and the text of the Federal

Magistrates Act did not state anything to the contrary, the Court concluded

magistrate judges had no authority to preside over habeas proceedings.

Disagreeing with the Supreme Court’s limitations on magistrate judge

authority, Congress amended the Federal Magistrates Act to “clarify the present

jurisdictional provisions” in light of Wingo and the Speedy Trial Act. Report of

the Proceedings of the Judicial Conference of the United States 31-32 (Mar.

1975). Congress sought to increase the scope of a magistrate judge’s authority by

empowering magistrate judges to conduct evidentiary hearings in habeas cases, try

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issues of a civil case with the parties’ consent, and try criminal misdemeanor

cases. In addition, this amendment provided a way for litigants to appeal a

magistrate judge’s ruling to a district judge, and serve as a special master. Act of

Oct. 21, 1976, Pub. L. No. 94-577, 90 Stat. 2729 (codified as amended at 28

U.S.C. § 636(b)).

With the modern framework in mind, several cases discussing the

“additional duties” clause of the Federal Magistrate Act are illustrative. In

Mathews v. Weber, 423 U.S. 261 (1976), the Supreme Court held that district

courts can refer all Social Security benefit cases to magistrate judges for an initial

review. But the magistrate judge’s role is limited to determining whether there

was substantial evidence in the record to support the Secretary’s decision. Jd. at

270. The magistrate judge can then propose a recommendation to the district

court judge, which the district court judge is free to accept or reject in full or in

part. The Court concluded this “preliminary-review function” fell within the

“additional duties” clause of the Federal Magistrates Act because it “substantially

assist[ed] the district judge in the performance of his judicial function.” Jd. at

271-72.

A few years later, in United States v. Raddatz, 447 U.S. 667 (1980), the

Supreme Court held the district court could consider the magistrate’s findings and

recommendation without rehearing the relevant testimony. The Supreme Court

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noted the Federal Magistrates Act requires a de novo determination of dispositive

motions rather than a de novo hearing. Jd. at 674-75.

Over time, these “additional duties” have been construed more broadly. In

Gomez v. United States, 490 U.S. 858 (1989), the Supreme Court held that,

without the defendant’s consent, a magistrate judge cannot conduct voir dire ina

felony jury trial. The Supreme Court noted jury selection is an important part of a

jury trial because it invokes important constitutional rights of the defendant. Id.

at 873. Because magistrate judges cannot conduct felony jury trials, they cannot

preside over critical subparts of a felony jury trial. Furthermore, the statute does

not provide a standard of review, yet it is “incongruous to assume .. . that

Congress intended not to require any review.” Id. at 874. Thus, the Court

concluded “[t]he absence of a specific reference to jury selection in the statute, or

indeed, in the legislative history, persuades us that Congress did not intend the

‘additional duties’ clause to embrace this function.” Id. at 875-76.

But later, in Peretz v. United States, 501 U.S. 923 (1991), the Supreme

Court held magistrate judges may conduct voir dire in a felony proceeding with

the defendant’s consent. The Court noted district judges may delegate civil and

misdemeanor trials to a magistrate judge with the parties’ consent, and these

duties “are comparable in responsibility and importance to presiding over voir

dire at a felony trial.” Id. at 933. The Court acknowledged that while litigants

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“may not waive structural protections provided by Article II,” the question of

conducting a felony voir dire did not implicate any structural protections. Jd at

937.

In Justice Marshall’s dissent in Peretz, joined by Justices White and

Blackmun, he argued that consent has no “bearing on the statutory power of a

magistrate to conduct felony jury selection.” Id. at 946. The dissent relied on

Gomez, arguing that Congress’s grant of authority to conduct civil and

misdemeanor trials implied that magistrate judges could not preside over felony

trials. Id. at 943. Because voir dire is a part of a felony trial, Congress intended

to preclude magistrate judges from exercising such authority. Id. According to

the dissent, consent of the parties does not affect the authority granted by

Congress. In addition, the dissent argued that Congress did not articulate any

standard of review for jury instructions in felony trials and that no such

meaningful review exists. Id. at 944-45.

Because the Supreme Court has only addressed the “additional duties”

clause in a few cases, the scope of these additional duties remains unclear. What

has become clear is that—over time—the phrase has been interpreted more

broadly. But just because magistrate judges are empowered to take on more

responsibility under the additional duties clause does not mean this power is

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unlimited. Instead, it is important to understand the constitutional limitations as

well as the limitations imposed by statute and our own precedent.

3. Federal Rules of Criminal Procedure

To help clarify the role of magistrate judges further, the federal courts

enacted Federal Rule of Civil Procedure 72 in 1983 to regulate court-ordered

referrals to magistrate judges in civil cases. Importantly, Rule 72 distinguished

between “dispositive” and “nondispositive” matters—that is, whether the ruling

would dispose of a party’s claim or defense. It provided that when a

nondispositive pretrial matter “is referred to a magistrate judge to hear and

decide, the magistrate judge must promptly conduct the required proceedings and,

when appropriate, issue a written order stating the decision.” But when a pretrial

matter is dispositive, the “magistrate judge must enter a recommended disposition

[to the district court judge], including, if appropriate, proposed finding of fact.””

But no counterpart existed for criminal matters. Thus, courts received no

guidance on handling criminal matters referred to magistrate judges. As a result,

2 For dispositive matters, a magistrate judge is required to issue a report

and recommendation to a district court judge. A report and recommendation is

exactly as it sounds—a report of proposed factual findings and a recommendation

as to the resolution of the matter. The parties have an opportunity to file

objections to the report and recommendation, which the district court reviews de

novo. The district court may then “accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the magistrate judge

with instructions.” Fed. R. Civ. P. 72(b)(3).

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courts have reached different conclusions. For example, both the First and

Seventh Circuits held that for nondispositive matters, a defendant who objects to

the magistrate judge’s decision must challenge that decision before the district

court to preserve appellate court review. See United States v. Brown, 79 F.3d

1499, 1503-04 (7th Cir. 1996); United States v. Akinola, 985 F.2d 1105, 1108-09

(1st Cir. 1993). In contrast, the Ninth Circuit held that the criminal rules, unlike

the civil rules, do not set forth the procedure parties should follow when they

object to a magistrate judge’s ruling on nondispositive matters. United States v.

Abonce-Barerra, 257 F.3d 959, 968 (9th Cir. 2001). Thus, parties preserve these

issues for appeal, even if they do not appeal the order to the district court.

Because of the resulting circuit split, in 2002, the Federal Committee on

Rules began an effort to reconcile the competing views, and adopt a criminal rule

counterpart for Federal Rule of Civil Procedure 72.

In considering the proposed modifications, the Committee was specifically

asked to determine whether the proposed rule would include felony guilty pleas as

dispositive matters requiring a report and recommendation by the magistrate

judge. The Committee was also asked to recommend that the rule address felony

guilty pleas explicitly, requiring a defendant’s consent, a magistrate judge’s

report and recommendation, and de novo review by the district court upon a

party’s objection. The Committee even discussed and considered the Tenth

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Circuit’s approach in Ciapponi. Ultimately, the Committee rejected this position

and recommended that this new rule not enumerate felony guilty pleas as casedispositive. Magistrate Judges Committee Agenda for Dec. 2002, at 1. Today,

Rule 59 does not address whether a felony guilty plea is a dispositive matter. As

a result, the Committee left open this question for courts to decide.

As adopted in 2005, Rule 59 states district judges may refer to a magistrate

judge dispositive and nondispositive matters. For nondispositive matters, the

parties may object within 14 days, and the district court must consider objections

by reviewing the magistrate judge’s order for clear error. For dispositive matters,

the magistrate judge must make a report and recommendation to the district court

for disposing of the matter, and, again, the parties may object within 14 days. If

the parties do not object to the magistrate’s recommendation, then the district

court may accept the report and recommendation. If the parties do object to the

magistrate judge’s recommendation, then the district court must consider de novo

the objections. Rule 59 does not clarify what constitutes a dispositive or

nondispositive matter, leaving to the courts to decide what can be properly

referred to a magistrate judge and what requires a report and recommendation.

Read together, the Constitution, the Federal Magistrates Act, and Rule 59

leave much to the courts. We know that Congress is restricted from transferring

Article III power to Article I judges. We also know that Congress told the district

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courts they could refer “additional duties” to magistrate judges as long as these

duties did not interfere with the authority granted under the Constitution. And we

know that some of these “additional duties” encompass the handling of

dispositive and nondispositive matters.

The question, then, is whether the acceptance of a felony guilty plea is a

dispositive matter that falls within the “additional duties” clause of the Federal

Magistrates Act and whether it undermines the structural integrity of Article III

courts.

C. Ciapponi is Binding

We have had several opportunities to consider whether magistrate judges

can properly accept felony guilty pleas.

Prior to the adoption of Rule 59, we first considered the scope of a

magistrate judge’s authority in conducting felony plea hearings in Ciapponi where

we held that, “with a defendant’s express consent, the broad residuary ‘additional

duties’ clause of the Magistrates Act authorizes a magistrate judge to conduct a

Rule 11 felony plea proceeding, and such does not violate the defendant’s

constitutional rights.” Ciapponi, 77 F.3d at 1251. And “[a]bsent an objection or

request for review by the defendant, the district court was not required to engage

in any more formal review of the plea proceeding.” Jd. at 1251. This court

concluded that “neither the Magistrates Act nor Article III requires that a referral

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be conditioned on subsequent review by the district judge, so long as a

defendant’s right to demand an Article III judge is preserved.” Jd. at 1251-52.

We reaffirmed the reasoning of Ciapponi more recently in United States v.

Salas-Garcia, 698 F.3d 1242 (10th Cir. 2012), a case which, of course, post-dates

the adoption of Rule 59. There, we held the magistrate judge could properly

accept a guilty plea even though the parties deferred acceptance of the plea

agreement to the district court judge. We noted that “even if the magistrate judge

had deferred acceptance of the plea agreement itself, the magistrate judge

accepted Salas-Garcia’s plea for the purposes of Rule 11.” Jd. at 1253 (emphasis

added). Thus, the court distinguished between a guilty plea and a plea agreement.

This is supported by Rule 11 where the rules allow for the withdrawing of a guilty

plea if the court rejects a plea agreement. Importantly for our purposes here,

Salas-Garcia did not challenge the district court’s conclusion that the magistrate

judge had the authority to accept a guilty plea.*

3 In an unpublished decision, we recently reaffirmed Ciapponi. In United

States v. Qualls, 741 F. App’x 592 (10th Cir. 2018), the panel held the magistrate

judge properly accepted a felony guilty plea before the defendant moved to

withdraw it. We “recognized that Congress authorized these duties by magistrate

judges, but to the extent any constitutional ambiguity remained, ‘the consent

tequirement . . . saves the delegation’ from doubt.” Jd. at 595 (quoting United

States v. Williams, 23 F.3d 629, 633 (2d Cir. 1994)). Again, the Rule 59

argument was not raised on appeal.

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Based on our precedent, it is clear that in the Tenth Circuit, federal

magistrate judges have the authority to accept felony guilty pleas without a report

and recommendation. But not all circuits are in agreement. The Seventh Circuit,

for example, held that “[t]he task of accepting a guilty plea is a task too important

to be considered a mere ‘additional duty.’ . . . the additional duties clause cannot

be stretched to reach acceptance of felony guilty pleas, even with the defendant’s

consent.” United States v. Harden, 758 F.3d 886, 888 (7th Cir. 2014). The

Seventh Circuit placed special weight on the fact that the defendant is not just

admitting guilt when he pleads guilty to a felony—he is consenting to a judgment

without a trial and therefore waiving his right to trial before a jury or district

court judge. Id. The court also placed weight on the experience of district court

judges, taking the position that they are better equipped to determine whether a

defendant is competent and making a voluntary choice to plead guilty to the

charges. Id. at 889.

The Fifth Circuit allows defendants to withdraw a guilty plea after pleading

guilty before a magistrate judge, but before the district court accepts the report

and recommendation. In United States v. Arami, 536 F.3d 479 (5th Cir. 2008),

the court held the defendant could withdraw his guilty plea before the district

court accepted the magistrate judge’s recommendation. The magistrate judge had

presided over a Rule 11 plea hearing and recommended that the district court

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accept the defendant’s guilty plea. The defendant filed a motion to withdraw his

guilty plea eight days prior to the district court’s adoption of the magistrate

judge’s recommendation. The court noted that “explicit language or an implicit

acceptance of the defendant’s guilty plea” is required before the closure of the

defendant’s right to withdraw a guilty plea for any reason. Jd. at 482.

The First Circuit has likewise ruled that defendants can withdraw guilty

pleas before the recommendation has been accepted by the district court. United

States v. Davila-Ruiz, 790 F.3d 249 (1st Cir. 2015). The court held that because

the magistrate “merely recommended acceptance of the plea rather than actually

accepting it, further action by the district court was needed.” Id. at 252. While

this does not touch directly on the issue before this panel—because the magistrate

judge made a recommendation to the district court—the reasoning once again

shows the extent to which different circuits have allowed magistrate judges to

handle felony guilty pleas.

Garcia urges us to view Ciapponi in a different light after the adoption of

Rule 59. Although Ciapponi makes clear that magistrate judges have the

authority to accept a felony guilty plea, Garcia asserts that Rule 59 limits this

authority by requiring different procedures for dispositive and nondispositive

matters. He contends that a felony guilty plea is a dispositive matter, which

requires a report and recommendation from the magistrate judge.

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While we are sympathetic to this argument, it fails for two reasons. First, it

is clear the Rules Committee declined to specify that felony guilty pleas are

dispositive matters, leaving this determination up to the courts. According to the

Committee notes, the Committee was presented with the opportunity to clarify the

matter, and it declined to do so.

Second, the promulgation of a new rule of Federal Criminal Procedure does

not vitiate our prior decision in Ciapponi. We have squarely held that magistrate

judges can accept guilty pleas. Even in the cases following the promulgation of

Rule 59, we endorsed the reasoning of Ciapponi. We are consequently “bound by

the precedent of prior panels absent en banc reconsideration or a superseding

contrary decision by the Supreme Court.” See In re Smith, 10 F.3d 723, 724 (10th

Cir. 1993) (per curiam).

Federal rules have the force and effect of law. United States v. Marion,

404 U.S. 307, 319 (1971). But in order for the rules to abrogate prior decisions,

there must be some conflict between the rule and judicial decision. Rule 59 is not

clearly “at odds with longstanding legislative and judicial constructions” of a

magistrate judge’s authority. Jd. We might reach a different result if we found

Rule 59 “is so indisputable and pellucid . . . that it constitutes intervening (i.e.,

superseding) law.” Barnes v. United States, 776 F.3d 1134, 1147 (10th Cir.

2015). But we cannot reach this conclusion.

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While Rule 59 clearly distinguishes the procedural requirements for

dispositive matters from the requirements for nondispositive matters, it does not

consider the effect that consent may have on these requirements. We know that

defendants’ “most basic rights” can be waived by consent. Peretz, 501 U.S. at

936. For instance, even though a criminal defendant has a constitutional right to

a jury, the Supreme Court held that “a defendant has no constitutional right to

have an Article III judge preside at jury selection if the defendant has raised no

objection to the judge’s absence.” Jd. at 936.

It must therefore be the case that certain matters, even dispositive matters,

can be handled by a magistrate judge with the defendant’s consent. Even if we

think that felony guilty pleas should ultimately be affirmed by district court

judges, nothing in the language of Rule 59 indicates that magistrate judges cannot

accept felony guilty pleas when the parties consent. The Federal Magistrates Act

does not prohibit this type of magistrate judge’s authority, and Rule 59 places the

discretion of such authority in the hands of the courts absent explicit instruction

otherwise.

In sum, because the acceptance of a guilty plea by a magistrate judge with

the defendant’s consent is not prohibited by the Federal Magistrates Act or Rule

59, we are bound by Ciapponi.

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D. Magistrate Judges and the Constitution

Even though we rely on precedent, we recognize other courts have

concluded differently. As discussed above, the Seventh Circuit flatly held that a

magistrate judge’s acceptance of a felony guilty plea for purposes of Rule 11

violates the Federal Magistrates Act. Harden, 758 F.3d at 891.4 Other circuits

have held that while a magistrate judge can conduct a Rule 11 plea hearing, the

magistrate judge must make a report and recommendation to the district court

judge, who has the last word. See, e.g., United States v. Reyna—Tapia, 328 F.3d

1114, 1119-22 (9th Cir. 2003) (en banc); United States v. Torres, 258 F.3d 791,

796 (8th Cir. 2001); United States v. Dees, 125 F.3d 261, 263, 265 (Sth Cir.

1997); United States v. Williams, 23 F.3d 629, 631-34 (2d Cir. 1994). Still other

circuits, like this one, allow magistrate judges to accept felony guilty pleas with

the defendant’s consent and without a report and recommendation. See, e.g.,

United States v. Benton, 523 F.3d 424, 431-32 (4th Cir. 2008); United States v.

Woodard, 387 F.3d 1329, 1332—33 (11th Cir. 2004); Ciapponi, 77 F.3d at

1250-52. Given these distinct approaches to an important aspect of our criminal

‘In Harden, the Seventh Circuit did not reach Harden’s constitutional

claim because it found the statutory violation was clear. 758 F.3d at 891.

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justice system, the parties and the courts might benefit from clarification by the

Supreme Court.’

Were we not bound by Ciapponi, we are persuaded that the acceptance of a

felony guilty plea is in fact a dispositive matter. Rule 59 talks of decisions that

“dispose of a charge or offense.” A guilty plea does exactly that. While

magistrate judges may have such authority to accept a felony plea under the

“additional duties” clause of the Federal Magistrates Act, this authority is limited

by Rule 59. Thus, the magistrate judge must issue a report and recommendation

as required by Rule 59(b)(1).

Rule 59(b)(1) only specifies that a magistrate judge must issue a report and

recommendation after a dispositive matter has been referred to the district court

judge. So the question that remains is whether a report and recommendation is

required on a dispositive matter when the parties consent to appearing before a

magistrate judge. We would answer that question affirmatively.

The Supreme Court has restricted its discussion of magistrate judge

authority to specific factual scenarios presented in different cases. The Court has

largely avoided constitutional questions by resting its decisions on litigant

consent. The Court has “declined to adopt formalistic and unbending rules” so as

5 While several of these cases post-date the adoption of Rule 59, they do

not address the impact of Rule 59.

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not to “unduly constrict Congress’ ability to take needed and innovative action

pursuant to its Article I powers.” Schor, 478 U.S. at 851. The Court, instead,

considers a number of factors “with an eye to the practical effect that the

congressional action will have on the constitutionally assigned role of the federal

judiciary.” Id. But this flexible approach cannot be adopted when the structural

separation of powers is threatened.

It is clear that “[t]he most basic rights of criminal defendants are . . .

subject to waiver.” Peretz, 501 U.S. at 936. But “[t]o the extent that [a]

structural principle is implicated in a given case, the parties cannot by consent

cure the constitutional difficulty for the same reason that the parties by consent

cannot confer on federal courts subject-matter jurisdiction beyond the limitations

imposed by Article III.” Schor, 478 U.S. at 850-51. This is because “Article III,

§ 1, safeguards the role of the Judicial Branch in our tripartite system by barring

congressional attempts ‘to transfer jurisdiction [from constitutional to legislative

courts] for the purpose of emasculating’ constitutional courts.” Jd. at 850 (quoting

Nat’l Ins. Co. v. Tidewater Co., 337 U.S. 582, 644 (1949)). The characteristics of

an Article III judge “remove[] the possibility that the courts will use adjudication

as a tool to complement other responsibilities, such as developing policy through

legislation (as by Congress) or administering the government (as by the

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executive).” F. Andrew Hessick, Consenting to Adjudication Outside the Article

HI Courts, 71 Vand. L. Rev. 715, 736-37 (2018).

Consent, therefore, cannot cure constitutional command. The question is

not whether the parties agreed to a magistrate judge authority but instead what

power the magistrate judge is exercising and whether that exercise is consistent

with the Constitution. We would find that by accepting a guilty plea for purposes

of Rule 11, a magistrate judge is exercising the judicial power of the United

States in violation of Article III of the Constitution.

Because Article III does not grant individual rights, but rather vests the

judicial power of the United States in a specific branch of government, Article III

power cannot be waived by consent. Therefore, no criminal defendant can

legitimately waive this provision and consent to a magistrate judge’s acceptance

of a guilty plea. This is because a criminal defendant can only waive his

individual rights—he cannot authorize the transfer of power away from an

independent branch of government.

The discussion in Wellness International Network Ltd. v. Sharif, 135 S. Ct.

1932 (2015), is illuminating. There, the Supreme Court held that an Article I

bankruptcy court may enter an enforceable judgment against parties. The

Supreme Court then noted that consent alone is enough to waive any

constitutional problems “so long as Article III courts retain supervisory authority

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over the process.” Jd. at 1944. Dissenting, Chief Justice Roberts stated that

private parties may not consent to an Article III violation. He argued that it is

irrelevant who supervises or controls the bankruptcy courts—what matters is that

a non-Article ITI court entered judgment on a non-core bankruptcy proceeding that

the Supreme Court previously held required an exercise of Article III power. He

stated that “practical considerations of efficiency and convenience cannot trump

the structural protections of the Constitution.” Jd. at 1959 (Roberts, C.J.,

dissenting). Justice Thomas, dissenting separately, noted that “a final judgment

enforceable without any further action by an Article III court” may require the

exercise of judicial power. Id. at 1968 (Thomas, J., dissenting). Final judgments,

which would constitute dispositive matters, “bear unique qualities that spring

from the exercise of the judicial power.” Id.

The acceptance of a felony guilty plea is a dispositive matter, finding the

criminal defendant guilty of the crimes charged and disposing of the matter before

the court. It is a final judgment against the defendant—the same final judgment

that would have issued had a jury of his peers found him guilty. Thus, a judge

who accepts the felony guilty plea is exercising the “judicial power of the United

States” and rendering a final judgment.

This judicial power is exclusively vested in Article III courts. Unlike

individual protections, which parties can waive through consent, the “judicial

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