Whether courts may consider a defendant's failure to object to a Rule 11 plea colloquy error when determining if that error affected the defendant's substantial rights under plain-error review

No question identified. : entered final judgment against Solis-Rodriguez on July 23, 2025. Without an extension, Solis-Rodriguez’s time to file a petition for certiorari in this Court expires on October 21, 2025. This application is being filed more than 10 days before that date. A copy of the Fourth Circuit’s published opinion in this case is attached as Exhibit 1. This Court has jurisdiction under 28 U.S.C. § 1254(1). This case presents an issue dividing the circuits: whether, under plain-error review, courts properly consider a defendant’s failure to object to a Rule 11 plea colloquy error when determining if that error affected the defendant’s substantial rights. It is well-established that, when a criminal defendant fails to object to a district court error, appellate relief is available only where he establishes: (1) an error; (2) that is plain; and (8) that affects substantial rights. United States v. Olano, 507 U.S. 725, 732 (1998). This rule applies to errors in the Rule 11 plea colloquy. United States v. Vonn, 535 U.S. 55, 59 (2004). In this context, to show “an effect on his substantial rights,” a defendant must “show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 80, 83 (2004). While the law is clear up to this point, the circuits diverge on whether courts may consider a defendant’s failure to object or seek withdrawal of their guilty plea when assessing whether the Rule 11 error affected his substantial rights. The Second, Fourth, and Eighth Circuits have adopted a minority view, counting a defendant’s failure to object to a Rule 11 error against him twice—both when choosing the more burdensome standard of plainerror review, and again when assessing whether the error affects the defendant’s substantial rights. United States v. Vaval, 404 F.3d 144, 152 (2d Cir. 2005) (explicit consideration of defendant’s failure to seek withdrawal of plea after Rule 11 error at step three of plain error analysis); United States v. Solis-Rodriguez, 144 F.4th 617, 625-26 (4th Cir. 2025) (same); United States v. Martin, 714 F.3d 1081, 1084 (8th Cir. 2018) (same). Other circuits, however, consider the defendant’s failure to object only when deciding whether the plain error standard applies. United States v. Borrero-Acevedo, 533 F.3d 11, 17-18 (1st Cir. 2008) (no consideration of failure to object to Rule 11 error at step three of plain error analysis); United States v. Goodson, 544 F.3d 529, 540-41 (8d Cir. 2008) (same); United States v. Castro-Trevino, 464 F.3d 536, 545-47 (5th Cir. 2006) (same); United States v. Ataya, 884 F.3d 318, 324-326 (6th Cir. 2018) (same); United States v. Williams, 946 F.3d 968, 973-75 (7th Cir. 2020) (same); United States v. Fuentes-Galvez, 969 F.3d 912 (9th Cir. 2020) (same); United States v. Martinez-Espinoza, 110 F.4th 1187, 1193-94 (10th Cir. 2024) (same); United States v. Moore, 703 F.3d 562, 570-71 (D.C. Cir. 2012) (same). The disparities created by these different approaches presents an important, nuanced, and recurring issue. To prepare a petition that adequately presents the issue to this Court for consideration, counsel will need additional time. In addition to preparing this petition, counsel is also responsible for meeting deadlines in numerous other cases, United States v. Brown, Supreme Court No. 25-5748 (petition for writ of certiorari filed September 24, 2025); United States v. Walsh, Fourth Circuit No. 254210 (opening brief due October 2, 2025); United States v. Moses, Fourth Circuit No. 25-4324 (opening brief October 6, 2025); United States v. Valdez, Fourth Circuit No. 25-4236 (opening brief due October 6, 2025); United States v. McNeil, Fourth Circuit No. 25-4224 (opening brief due October 9, 2025; United States v. Planter, Fourth Circuit No. 25-4391 (opening brief due October 21, 2025); United States v. Spencer, Fourth Circuit No. 25-4396 (opening brief due October 21, 2025); United States v. Mc