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Withdrawing A Guilty Plea In Federal Court

By Spodek Law Group | July 27, 2023
(Last Updated On: October 13, 2023)

Last Updated on: 13th October 2023, 08:21 pm

Withdrawing a Guilty Plea in Federal Court

Entering a guilty plea is a major decision with serious consequences in a federal criminal case. Many defendants initially plead guilty to resolve their case through a plea agreement and avoid the time and expense of a trial. However, some defendants later have second thoughts and want to withdraw their guilty plea before sentencing. This raises the question – is it possible to withdraw a guilty plea in federal court?

The short answer is yes, it is possible, but not easy. Under Federal Rule of Criminal Procedure 11(d), a defendant may withdraw a guilty plea before it is accepted by the court. However, once the court accepts the plea, the standard becomes much harder to meet. The defendant must show a “fair and just reason” for withdrawing the plea. Meeting this standard is difficult, and courts rarely allow defendants to withdraw a plea after it has been accepted.

When Can a Guilty Plea Be Withdrawn?

There are two main time periods when a defendant can attempt to withdraw a guilty plea in federal court:

  • Before the plea is accepted – Up until the court formally accepts the guilty plea, the defendant has an absolute right to withdraw it for any reason. No justification is required.
  • After acceptance, but before sentencing – Once the court accepts the plea, the defendant can only withdraw it by showing a “fair and just reason.” This is a very high standard that is rarely met.

After sentencing occurs, it becomes extremely difficult to withdraw a guilty plea. The only option at that point is to file a habeas petition claiming a constitutional issue affected the plea. So for all practical purposes, the deadline for withdrawing a plea is prior to sentencing.

What is a “Fair and Just Reason” to Withdraw a Plea?

Exactly what qualifies as a fair and just reason is decided by the court on a case-by-case basis. However, some common arguments include:

  • Innocence – The defendant asserts they are factually innocent and wants to take the case to trial.
  • Misunderstanding – The defendant did not fully understand the charges or consequences of pleading guilty.
  • Coercion – The plea was coerced by threats from the prosecutor or promises from defense counsel.
  • Ineffective assistance – The defendant’s attorney provided inadequate legal advice regarding the plea.
  • Change in law – A change in the law affects the plea agreement or provides a new defense.

The strength of the reason matters more than the specific argument. Courts are very reluctant to allow plea withdrawals, so the defendant must show compelling circumstances. Weak reasons like changing one’s mind or dissatisfaction with the plea deal are usually rejected.

Other Factors Courts Consider

In addition to the defendant’s reason for withdrawing the plea, courts also weigh several other factors[5]:

  • Assertion of innocence – Defendants who claim they are factually innocent have a better chance of withdrawing their plea.
  • Delay – The longer a defendant waits to withdraw the plea, the more skeptical the court becomes.
  • Prejudice to prosecution – Will withdrawing the plea make it harder for the prosecution to try the case?
  • Prior proceedings – The court considers events at the plea hearing, like the plea colloquy.
  • Terms of plea agreement – Does the agreement have provisions limiting the ability to withdraw?

These factors help the judge assess how fair and just it would be to permit withdrawal under the totality of circumstances. The bottom line is that the longer the process has gone on, and the weaker the reason for withdrawing, the less likely the court is to grant the request.

Strategies for Withdrawing a Federal Guilty Plea

Given the strict standard, having an experienced federal criminal defense lawyer is essential when trying to withdraw a guilty plea. Here are some strategies a lawyer may use:

  • File the motion to withdraw very soon after entering the plea, to avoid delay concerns.
  • Submit affidavits asserting the defendant’s factual innocence.
  • Obtain expert testimony about coercion or other influences on the plea decision.
  • Argue that newly discovered evidence, or changes in the law, affect the plea.
  • Claim ineffective assistance of counsel, if plea advice was demonstrably deficient.
  • Negotiate language in the plea agreement preserving the ability to withdraw.

The court will review the entire record and hold an evidentiary hearing to evaluate these arguments. However, the odds are stacked against the defendant at this stage. Thorough preparation and skillful advocacy are required to show withdrawing the plea is fair and just.

Withdrawing a Plea Before Acceptance

Withdrawing a guilty plea is much easier before the court accepts it. At this stage, the defendant has an absolute right to reverse course for any reason. The request does not have to be justified to the court. Defense counsel simply informs the judge the defendant has changed their mind and wants to go to trial.

It is important to withdraw the plea before the court states on the record that it is accepted. Some judges expressly accept the plea at the hearing, while others defer acceptance until later. Pay close attention, because once the court accepts the plea, the “fair and just reason” standard kicks in.


Withdrawing a guilty plea in federal court is very difficult after it has been accepted. While it is possible, defendants face an uphill battle showing a compelling reason that outweighs the presumption that accepted pleas are final. Consult with an experienced federal criminal defense lawyer before deciding whether to attempt withdrawing a plea in your case.

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