United States v. Samuel Savage, 561 F.2d 554 (4th Cir. 1977). · Go Syfert
United States v. Samuel Savage, 561 F.2d 554 (4th Cir. 1977). Cases Citing This Book View Copy Cite
66 citation events (3 in the last 25 years) across 35 distinct courts.
Strongest positive: State v. R. Collins (mont, 2023-05-09) · Strongest negative: State v. Sarette (nh, 1991-04-23)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
cited Cited "but see" State v. Sarette
N.H. · 1991 · signal: but see · confidence high
But see United States v. Savage, 561 F.2d 554, 556 (4th Cir. 1977).
discussed Cited as authority (rule) State v. R. Collins
Mont. · 2023 · confidence medium
P. 11(c)(1) and (3)-(5) (as amended after 1991); United States v. Babineau, 795 F.2d 518, 519-20 (5th Cir. 1986) (statutory requirements for formal/express acceptance or rejection of a binding plea agreement do not apply to non-binding agreements); United States v. Savage, 561 F.2d 554, 556 (4th Cir. 1977) (recognizing that “[n]on-acceptance” of the agreed sentencing recommendation is merely a contemplated part or contingency that does not affect the enforceability of the other terms of a non-binding plea agreement rather than a rejection of the entire agreement as in the case of a binding…
discussed Cited as authority (rule) State v. Minerva Lopez (2×)
Wis. · 2014 · confidence medium
LaFave documents the gradual transition from the view espoused in United States v. Savage, 561 F.2d 554, 557 (4th Cir. 1977), that no "fair and just reason" is needed and a defendant should be allowed to withdraw a guilty plea absent prejudice, towards a more restrictive view that there is "no occasion to inquire into the matter of prejudice unless the defendant first shows a good reason for being allowed to withdraw his plea." 18 ¶ 187.
discussed Cited as authority (rule) United States v. Lyman Cray, A/K/A Lynn Ward Carey
D.C. Cir. · 1995 · confidence medium
Especially iii light of “the great care with which pleas are taken under [the then-recently] revised Rule 11,” the Committee concluded, “there is no occasion to inquire into the matter of prejudice [to the Government] unless the defendant first shows a good reason for being allowed to withdraw his plea.” The Committee squarely rejected the contrary approach illustrated by United States v. Savage, 561 F.2d 554, 557 (4th Cir.1977) (where Government would not be prejudiced defendant may withdraw plea notwithstanding absence of Rule 11 violation).
discussed Cited as authority (rule) United States v. Robert David Torry, Jr.
4th Cir. · 1991 · confidence medium
Since the troopers found the drugs, money, and gun under the passenger seat, the search was proper and the district court properly denied Torry's motion to suppress. 8 Torry also appeals on the grounds that the district court should not have denied his motion to withdraw his guilty plea without first determining whether withdrawal would prejudice the government, citing United States v. Savage, 561 F.2d 554, 556-57 (4th Cir.1977).
discussed Cited as authority (rule) United States v. Fred Julian Harvey
4th Cir. · 1990 · confidence medium
Rule 32(d) provides: 9 If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed ... the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. 10 Harvey argues that the court erred when it denied his motion to withdraw because the court did not require the government to show that it would be prejudiced by the withdrawal. 11 Harvey's argument is based upon the statement made by the court in United States v. Savage, 561 F.2d 554, 556 (4th Cir.1977), that "leave to withdraw a plea before sentencing normally …
discussed Cited as authority (rule) State v. Rish
Conn. App. Ct. · 1989 · confidence medium
You might even want to take an appeal on my refusal to allow you to withdraw the pleas.” The state, at the hearing on the motions to withdraw the defendant’s pleas, stated that the “witness” would not have been used as a prosecution witness “under any circumstances in any event.” The state also claimed that the defendant was aware of the witness, and that the defendant knew the witness was in the custody of the state. “[Practice Book] Sec. 744. [disclosure by the prosecuting AUTHORITY — DISCLOSURE AT JUDICIAL DISCRETION] PRIOR RECORD OF WITNESSES “After a witness called by th…
cited Cited as authority (rule) United States v. Walter Deland Triplett
6th Cir. · 1987 · confidence medium
United States v. Savage, 561 F.2d 554, 556-57 (4th Cir.1977).
discussed Cited as authority (rule) Gooding v. United States (2×)
D.C. · 1987 · confidence medium
Where there has been a delay, regard may be had to whether the government would be prejudiced by withdrawal of the plea, United States v. Strauss, 563 F.2d 127, 130-31 (4th Cir. 1977); United States v. Savage, 561 F.2d 554, 556-57 (4th Cir.1977), and "where such prejudice is absent or minimal, withdrawal is routinely permitted," Roberts, supra, 187 U.S.App.D.C. at 102 , 570 F.2d at 1011 . [9] Prejudice to the government's legitimate interests is measured as of the time at which the defendant seeks to withdraw the guilty plea, not later.
discussed Cited as authority (rule) Gooding v. United States (2×)
D.C. · 1986 · confidence medium
Where there has been a delay, regard may be had to whether the government would be prejudiced by withdrawal of the plea, United States v. Strauss, 563 F.2d 127, 130-31 (4th Cir. 1977); United States v. Savage, 561 F.2d 554, 556-57 (4th Cir.1977), and "where such prejudice is absent or minimal, withdrawal is routinely permitted," Roberts, supra, 187 U.S.App.D.C. at 102 , 570 F.2d at 1011 . [9] Prejudice to the government's legitimate interests is measured as of the time at which the defendant seeks to withdraw the guilty plea, not later.
cited Cited as authority (rule) United States v. Rodriguez
D.P.R. · 1986 · confidence medium
United States v. Henderson, 565 F.2d 1119, 1122 (9th Cir.1977); United States v. Savage, 561 F.2d 554, 556 (4th Cir.1977).
cited Cited as authority (rule) United States v. Rashkow
N.D. Ill. · 1985 · confidence medium
United States v. Strauss, 563 F.2d 127, 131 (4th Cir.1977); United States v. Savage, 561 F.2d 554, 556-57 (4th Cir.1977).
discussed Cited as authority (rule) United States v. Joseph Burruezo
2d Cir. · 1983 · confidence medium
See, e.g., United States v. Henderson, 565 F.2d 1119, 1122-23 (9th Cir. 1977), cert. denied, 435 U.S. 955 , 98 S.Ct. 1586 , 55 L.Ed.2d 806 (1978); United States v. Savage, 561 F.2d 554, 556 (4th Cir.1977); United States v. Sarubbi, 416 F.Supp. 633, 637 (D.N.J.1976).
cited Cited as authority (rule) United States v. Mark Christopher Schmader
4th Cir. · 1981 · confidence medium
United States v. Savage, 561 F.2d 554, 556 (4th Cir. 1977).
cited Cited as authority (rule) George Frank Lindner v. Donald W. Wyrick, Warden
8th Cir. · 1981 · confidence medium
United States v. Savage, 561 F.2d 554, 556 (4th Cir. 1977). 8 .
discussed Cited as authority (rule) United States v. Wesley B. Brown, Jr.
4th Cir. · 1980 · confidence medium
If, however, the government has been prejudiced by its reliance on the guilty plea, “this dispensation should not be [so] freely granted.” United States v. Savage, 561 F.2d 554, 556 (4th Cir. 1972), and the district court must weigh this prejudice against defendant’s reason for seeking to withdraw the plea.
cited Cited as authority (rule) Fontana v. State
Md. Ct. Spec. App. · 1979 · confidence medium
United States v. Savage, 561 F. 2d 554, 556-557 (4th Cir. 1977); United States v. Harvey, 463 F. 2d 1022, 1023 (4th Cir. 1972); United States v. Tabory, 462 F. 2d 352, 354 (4th Cir. 1972).
cited Cited as authority (rule) United States v. Scott
D. Maryland · 1978 · confidence medium
United States v. Savage, 561 F.2d 554, 556 (4th Cir. 1977).
cited Cited "see" State v. Deal
N.C. Ct. App. · 1990 · signal: see · confidence high
See United States v. Savage, 561 F.2d 554 (4th Cir. 1977).
cited Cited "see" Duran v. SUPERIOR COURT FOR MARICOPA
Ariz. Ct. App. · 1989 · signal: see · confidence high
See United States v. Savage, 561 F.2d 554 (4th Cir. 1977).
discussed Cited "see, e.g." United States v. Dean A. Lambey (2×)
4th Cir. · 1992 · signal: see also · confidence medium
Wright, Federal Practice and Procedure § 528, at 474-75 (1969)); see also, United States v. Savage, 561 F.2d 554, 556 (4th Cir.1977).
discussed Cited "see, e.g." United States v. Dean A. Lambey (2×)
4th Cir. · 1991 · signal: see also · confidence medium
Wright, Federal Practice and Procedure § 528, at 474-75 (1969)); see also, United States v. Savage, 561 F.2d 554, 556 (4th Cir.1977).
discussed Cited "see, e.g." Hugh Don Smith v. United States
11th Cir. · 1982 · signal: see also · confidence low
See also United States *148 v. Savage, 561 F.2d 554 (4th Cir. 1977) (judge’s imposition of sentence exceeding that recommended by government does not constitute rejection of plea agreement entitling defendant to withdraw plea).
discussed Cited "see, e.g." United States v. American Bag & Paper Corp.
3rd Cir. · 1979 · signal: compare · confidence low
Compare United States v. White, 583 F.2d 819 (6th Cir. 1978) (failure to follow sentencing recommendation constitutes a rejection) with United States v. Henderson, 565 F.2d 1119 (9th Cir. 1977), cert, denied, 435 U.S. 955 [, 98 S.Ct. 1586 , 55 L.Ed.2d 806 ] (1978) (failure to follow recommendation not a rejection) and United States v. Savage, 561 F.2d 554 (4th Cir. 1977) (same).
cited Cited "see, e.g." Neeley v. Duckworth
N.D. Ind. · 1979 · signal: see also · confidence low
See also, United States v. Savage, 561 F.2d 554 (4th Cir. 1977); United States v. Henderson, 565 F.2d 1119 (9th Cir. 1977), cert. den. 435 U.S. 955 , 98 S.Ct. 1586 , 55 L.Ed.2d 806 (1978).
cited Cited "see, e.g." United States v. Thomas D. Gaertner
7th Cir. · 1979 · signal: see, e.g. · confidence low
See, e. g., United States v. Savage, 561 F.2d 554 (4th Cir. 1977); United States v. Henderson, 565 F.2d 1119 (9th Cir. 1977), cert. denied, 435 U.S. 955 , 98 S.Ct. 1586 , 55 L.Ed.2d 806 (1978).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Samuel SAVAGE, Appellant
77-1369.
Court of Appeals for the Fourth Circuit.
Sep 12, 1977.
561 F.2d 554
1977 U.S. App. LEXIS 11614
Joseph Kiel, Phoenix, Md., for appellant., Gerard P. Martin, Asst. U. S. Atty., Baltimore, Md. (Jervis S. Finney, U. S. Atty., and Robert A. Rohrbaugh, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.
Russell, Widener, Hall.
Cited by 56 opinions  |  Published
K. K. HALL, Circuit Judge:

The defendant’s plea to one count of a three-count indictment, pursuant to a plea agreement with the government, was accepted by the district court on November 14, 1975. As a part of the agreement, the government recommended a sentence of five years imprisonment, to be served concurrently with a twenty-two year sentence the defendant was presently facing on another charge.

Brought before the court for sentencing on December 4, 1975, and after the district judge indicated his unwillingness to follow the government recommendation regarding sentencing, the defendant personally requested that he be allowed to withdraw his plea. The judge ignored the request and sentenced defendant to a term of ten years, to run concurrently with the sentence the defendant was facing on the other charge.

Three issues arise from the circumstances surrounding the plea and sentencing: (1) Did the district court comply with the provisions of F.R.Crim.P. 11 when the plea was accepted on November 14, 1975? (2) Did the district court reject the plea agreement, thus triggering F.R.Crim.P. 11(e)(4), which provides for withdrawal of a defendant’s plea when the plea agreement is rejected? (3) Did the district court abuse its discretion under F.R.Crim.P. 32(d) by refusing to allow the defendant to withdraw his plea before sentencing?

The court finds no reversible error on the part of the district court, but nevertheless we must remand this case for further findings on the Rule 32(d) motion.

I.

The plea was entered by the defendant and accepted by the district court on[*556] November 14, 1975, before the December 1, 1975, effective date of the amendments to Rule 11. The defendant argues that Rule 11, as amended, should apply to that proceeding, and that the procedural requirements of Rule 11, as amended, were not followed. We do not reach the issue of whether Rule 11, as amended, applied to the November 14, 1975, proceeding, because we hold that regardless of whether old Rule 11 or the amended Rule 11 applied at the time of the proceeding, the district court met all procedural requirements of either version of the rule.

II.

Defendant next contends that the trial judge rejected the plea agreement, and, therefore, that the defendant should have been allowed to withdraw his plea under Rule 11(e)(4). [1] From his brief and oral argument, the defendant apparently claims that the trial court rejected the plea agreement in two separate ways. First, the district judge supposedly rejected the plea agreement when he stated that “I think your case — this case ought to be tried and you ought to be sentenced in accordance with the verdict, if it’s guilty, or you ought to not be convicted at all of this offense.” Defendant’s claim that this statement constituted a rejection of the plea agreement is without merit. The record clearly shows that the trial court later in the same proceeding sentenced the defendant under his plea of guilty, demonstrating that the court indeed did not reject the plea agreement.

Second, the defendant contends that the district judge rejected the plea agreement when he refused to follow the government’s recommendation on sentencing. [2] This issue was expressly left unanswered in United States v. Futeral, 539 F.2d 329, 331 n. 1 (4th Cir. 1975). We now hold that where a defendant plea bargains only for a recommendation by the government, which the defendant knows is not binding on the trial court, and the government complies with the agreement by making the recommendation, nonacceptance of the recommendation by the trial court is not a rejection of the plea agreement under Rule 11(e)(4).

Closely analogous to the case at bar is United States v. Sarubbi, 416 F.Supp. 633 (D.N.J.1976), where the court held that in the type of plea agreement involved in this case, “it is part of the agreement itself that the parties understand that the court is not bound by the recommendation request. Non-acceptance of the request is not a rejection of the agreement and so is not within Rule 11(e)(1).” (sic) We believe this reasoning to be sound and adopt it as the rule of this circuit.

III.

Finally, the defendant contends that the trial court abused its discretion under Rule 32(d) by refusing to allow the defendant to withdraw his plea before sentencing. The rule of this circuit is that leave to withdraw a plea before sentencing normally should be allowed, but that this dispensation should not be as freely granted when the government has been prejudiced by reliance on the defendant’s guilty plea. The trial court must weigh the defendant’s[*557] reasons for seeking to withdraw his plea against the prejudice which the government will suffer. On appeal, the court’s denial of the motion will be overturned only for abuse of discretion. U. S. v. Truglio, 493 F.2d 574, 578 (4th Cir. 1974).

The record reveals that the defendant orally made his request to withdraw his plea just moments before sentencing, and we view this request as a motion under Rule 32(d). Probably due to the timing of this motion, the record does not indicate whether the government would have been prejudiced by the granting of the motion. At oral argument, however, the government did allege that prejudice would have resulted if the motion had been granted. Nevertheless, this determination should first be made by the trial court, and not on appeal.

Therefore, the case must be remanded for determination of the prejudice, if any, to the government which would arise from the granting of this motion. If, on remand, no such prejudice is found by the trial court, the defendant should be allowed to withdraw his plea.

REMANDED WITH INSTRUCTIONS.

1

. Rule 11(e)(4) provides:

Rejection of a Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

The acts which the defendant claims amounted to a rejection of the plea agreement occurred at the December 4, 1975 proceeding, after the December 1, 1975, effective date of Rule 11, as amended. The cited provision therefore applied to this proceeding.

2

. There is no contention that the bargain was breached. The government promised merely to recommend a sentence to the court, and the record conclusively shows that the defendant was aware that the government’s recommendation was not binding on the court. The defendant admitted such knowledge in both his brief and oral argument.