Tenth Circuit Clarifies Plea-Stage Discretion: District Courts May Reject Guilty Pleas When Defendant Insists on Duress, and Need Not Test Affirmative Defenses at Rule 11 Colloquy

Introduction

United States v. Romero, a published decision of the U.S. Court of Appeals for the Tenth Circuit (No. 23-8056, March 26, 2025), addresses a recurring but undertheorized problem in federal plea practice: What should a district court do when a defendant offers a guilty plea yet simultaneously claims an affirmative defense—here, duress? The district court rejected Salvador Nolasco Romero’s plea after he repeatedly asserted that cartel threats compelled his conduct. He went to trial, was convicted of drug conspiracy and possession with intent to distribute, and received a 188-month sentence. On appeal, Romero argued the district court erred by refusing his plea despite a sufficient factual basis and by failing to recognize it could accept a plea accompanied by an affirmative defense.

The Tenth Circuit affirms. The Court assumes a sufficient Rule 11 factual basis existed for the conspiracy plea despite Romero’s duress narrative, but holds there was no plain error in the district court’s rejection of the plea. Two doctrinal pillars structure the opinion:

• Duress is an affirmative defense that typically does not negate offense elements (including mens rea) and therefore does not, by itself, defeat the Rule 11 factual basis for a plea.
• District courts have broad discretion to accept or to reject guilty pleas accompanied by protestations of innocence or assertions of affirmative defenses, and are not obligated at the plea hearing to vet the merits of the defense before declining to accept the plea.

Summary of the Opinion

The Court (Judge Hartz, joined by Judges Ebel and Rossman) affirms Romero’s convictions, holding:

• Assumption of factual basis: The Court accepts (as uncontested) that Romero’s colloquy admitted the elements of a § 846 drug conspiracy notwithstanding his persistent duress assertions.
• Duress and offense elements: Echoing Supreme Court and circuit precedent, the panel explains that duress ordinarily excuses otherwise criminal conduct without negating elements of the offense; it typically goes to why (motive), not whether the defendant formed the requisite intent or engaged in the acts.
• District court discretion at Rule 11: Multiple circuits recognize that district judges may accept pleas even when a defendant raises an affirmative defense that does not negate any element, but they also have “considerable discretion” to reject such pleas—especially where the defendant asserts innocence or equivocation.
• No plain error: Romero forfeited his arguments by not raising them at the plea hearing, and on plain-error review the Court finds no clear or obvious error. There is no authority requiring a plea-stage merits inquiry into an affirmative defense, and the district judge’s phrasing (“will not,” “cannot”) does not demonstrate a misunderstanding of discretion. The Court presumes judges know the law absent a contrary record.

Because these holdings resolve the appeal, the panel does not address the Government’s waiver arguments.

Analysis

Precedents Cited and Their Influence

• Fed. R. Crim. P. 11(b)(3) and United States v. Kearn, 90 F.4th 1301 (10th Cir. 2024): The factual-basis inquiry compares admitted conduct to offense elements. The panel accepts that Romero’s admissions (coordinating pickup and delivery of 12 lbs. of methamphetamine, renting a car, directing travel to Minnesota) satisfied § 846’s elements (as synthesized in United States v. Cushing, 10 F.4th 1055, 1065–66 (10th Cir. 2021)).
• Duress as an affirmative defense:
  • United States v. Bailey, 444 U.S. 394 (1980): Duress/necessity excuses criminal conduct but does not typically negate the mens rea; it addresses the absence of a fair opportunity to obey the law.
  • Dixon v. United States, 548 U.S. 1 (2006): Duress does not negate “knowing” or “willful” mental states. A person can knowingly violate the law even if compelled by threats.
  • United States v. Arias-Quijada, 926 F.3d 1257 (10th Cir. 2019): Elements of duress (immediate threat, well-grounded fear, no reasonable opportunity to escape), invoked later by the district court to exclude the duress defense at trial via motion in limine.
  • Rosemond v. United States, 572 U.S. 65 (2014) (Alito, J., concurring in part, dissenting in part): Distinguishes motive (including coercive reasons) from intent; duress seldom negates mens rea.
  • United States v. Tolliver, 730 F.3d 1216 (10th Cir. 2013) and Havens v. James, 76 F.4th 103 (2d Cir. 2023): Motive is not an element of the offense; intent is distinct.
  • Martin v. Ohio, 480 U.S. 228 (1987): Self-defense may be placed on the defendant without violating due process; evidence of justification often does not negate purposeful killing “with prior calculation and design.”
  • United States v. Leal-Cruz, 431 F.3d 667 (9th Cir. 2005): Duress does not necessarily negate specific intent even for attempted illegal reentry; the “conscious desire” to cross can coexist with coercion.
• District court discretion to accept/reject pleas with affirmative defenses or protestations of innocence:
  • United States v. Ortiz, 927 F.3d 868 (5th Cir. 2019) and United States v. Smith, 160 F.3d 117 (2d Cir. 1998): Courts may accept pleas even if the record suggests an affirmative defense that does not undercut offense elements.
  • United States v. Gomez-Gomez, 822 F.2d 1008 (11th Cir. 1987); United States v. Lucas, 429 F.3d 1154 (7th Cir. 2005); United States v. Rashad, 396 F.3d 398 (D.C. Cir. 2005): Courts have “considerable discretion” to reject pleas when defendants assert innocence or offer exculpatory facts; acceptance is not mandatory.
  • United States v. Buonocore, 416 F.3d 1124 (10th Cir. 2005): Recognizes broad discretion to reject Alford and nolo contendere pleas; supports discretion-based approach here.
• Plain-error and preservation:
  • United States v. Howard, 784 F.3d 745 (10th Cir. 2015); United States v. Weeks, 653 F.3d 1188 (10th Cir. 2011): Unpreserved arguments are reviewed for plain error only.
  • United States v. Warrington, 78 F.4th 1158 (10th Cir. 2023): Defines “plain” error as clear or obvious under well-settled law.
  • United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007): Appellate presumption that trial judges know and correctly apply the law.
  • United States v. Vidal, 561 F.3d 1113 (10th Cir. 2009): General pleas for leniency do not preserve specific legal objections to plea handling.
  • Unpublished but informative: United States v. Tillman, 504 F. App’x 729 (10th Cir. 2012); United States v. Demikh, 683 F. App’x 533 (8th Cir. 2017). These illustrate non-error in rejecting pleas when defendants equivocate or advance coercion narratives.
• In re Vasquez-Ramirez, 443 F.3d 692 (9th Cir. 2006) and United States v. Martin, 528 F.3d 746 (10th Cir. 2008): Raised late in a Rule 28(j) letter and not considered; those cases cast doubt on rejecting unconditional, contradiction-free guilty pleas that otherwise meet Rule 11, but they expressly recognize discretion to reject pleas where the defendant “protests his innocence”—as Romero did.

Legal Reasoning and How the Court Reached Its Decision

1. The Rule 11 factual-basis frame:

   The factual-basis requirement asks whether the defendant’s admissions match the offense elements. For § 846 conspiracy, the elements include agreement, knowledge of objectives, knowing and voluntary participation, and interdependence. The panel accepts (without deciding) that Romero’s admissions satisfied these elements. Importantly, the Court is careful not to conflate “voluntary participation” in the elements sense with the absence of duress; “voluntary” in § 846 jurisprudence typically means intentional, not free from coercive motives.

2. Duress does not (usually) negate offense elements:

   Invoking Bailey and Dixon, the Court explains that duress excuses criminal liability without contradicting actus reus or mens rea—except in narrow contexts not implicated here (for example, “malice” defined as intent “without justification or excuse,” Dixon n.4). The defense concerns why the defendant acted, not whether the defendant formed intent or engaged in the conduct. Thus, a defendant can knowingly and intentionally commit a conspiracy act while acting under threats; that tension is doctrinally resolved through an affirmative defense at trial, not by erasing the Rule 11 factual basis.

3. Discretion to accept or reject pleas with asserted defenses:

   The Court surveys circuit authority to conclude that Rule 11 does not mandate acceptance of a plea simply because a factual basis exists. District courts may accept a plea notwithstanding an affirmative defense that does not negate elements, but they retain broad discretion to reject a plea when the defendant claims innocence or offers exculpatory facts. This discretion extends to Alford/nolo contexts and, by analogy, to pleas shadowed by duress assertions.

4. Application under plain-error review:
   • Preservation: Romero did not argue at the plea hearing that the duress defense was legally insufficient or that the court could accept his plea despite duress. He therefore forfeited those challenges.
   • No clear or obvious error: There is no controlling authority obligating a district court to explore the merits of a duress defense at the change-of-plea hearing before rejecting a plea. Indeed, cases permit rejection when defendants protest innocence. The district judge’s statements (“I will not accept,” “I cannot accept”) are read in context as exercising discretion, not as an erroneous belief that the law forbade acceptance.
   • No abuse of discretion: The defendant shifted narratives mid-colloquy; defense counsel was unprepared for a duress posture and acknowledged the strategic fork: either disclaim duress and plead, or maintain duress and go to trial. Rejecting the plea to prevent an uninformed or coerced record—and to allow counsel to regroup—was within the heartland of discretion.

Impact: What Romero Means Going Forward

• Plea practice in the Tenth Circuit:
  • District judges may reject a guilty plea if the defendant insists on duress or otherwise asserts innocence or an exculpatory justification, even when the admitted facts satisfy offense elements.
  • Judges are not required at the plea stage to conduct a mini-trial into the merits of an affirmative defense before deciding whether to accept or reject the plea.
• Defense strategy:
  • Be deliberate about whether to raise duress during the Rule 11 colloquy. As Romero shows, doing so can scuttle a favorable plea and precipitate trial.
  • If the goal is to preserve a plea while acknowledging real-world coercion, consider framing the facts to establish the elements while reserving coercion-related arguments for sentencing mitigation rather than as an affirmative defense. Alternatively, if the defendant wishes to plead while maintaining innocence, counsel should explicitly request an Alford plea and preserve objections to any rejection.
  • Preserve issues. If seeking acceptance despite an asserted affirmative defense, explicitly inform the court that it has discretion to accept the plea under cases like Ortiz and Smith, and articulate why acceptance is appropriate on the record.
• Government approach:
  • Prosecutors may use targeted follow-up questions at the colloquy to clarify whether the defendant is asserting innocence or a justification; this can inform plea acceptance and later trial motions, such as in limine motions to preclude a duress defense.
  • Romero confirms that a later ruling precluding a duress defense at trial does not retroactively make it error to have rejected a plea earlier under a cloud of asserted duress.
• Judicial administration:
  • Judges maintain broad discretion at Rule 11 to protect the integrity and voluntariness of pleas. Romero approves declining to accept a plea when the defendant’s narrative signals an active claim of innocence or justification.
  • For clarity, judges may wish to use “I will not accept the plea” and briefly state discretionary reasons to avoid later claims of a perceived lack of authority.
• Substantive law:
  • The opinion reinforces that duress is typically a true affirmative defense that excuses rather than negates guilt. While the panel “hesitates to say” duress could negate conspiracy elements, it proceeds on the widely accepted premise that it generally does not.
  • Unresolved nuance: The Court flags, but does not decide, that certain mens rea formulations (for example, “malice” defined to exclude justification) may interact differently with duress.

Complex Concepts Simplified

• Rule 11(b)(3) “factual basis”:
  Before accepting a plea, the judge must ensure the admitted facts satisfy each element of the offense. This is not a forum to adjudicate affirmative defenses unless they negate an element.
• Affirmative defense of duress:
  A complete excuse where the defendant shows an immediate threat of death or serious injury, a well-grounded fear the threat will be carried out, and no reasonable opportunity to escape the harm. It typically addresses why the defendant broke the law, not whether the defendant formed the required intent.
• Mens rea versus motive:
  Mens rea is the mental state required by the statute (knowingly, intentionally, purposefully). Motive is the reason for acting. Duress may supply a compelling motive but usually does not negate mens rea.
• Alford and nolo contendere pleas:
  An Alford plea is a guilty plea while maintaining innocence; nolo contendere is a plea of no contest. Courts have broad discretion to accept or reject such pleas, and in the Tenth Circuit may even adopt a general policy against them.
• Plain-error review:
  When a party fails to object in the district court, the appellate court asks whether there was an error that is clear under settled law, affected substantial rights, and seriously impugns the fairness or integrity of proceedings. Failure on any prong defeats the claim.
• Interdependence in conspiracy:
  An element requiring that the defendant’s activities further the endeavors of the conspirators; the venture’s success depends on each participant’s role. Romero’s logistics and support for a courier satisfied this.

Key Points from the Record

• Romero initially answered “In part, yes, I am guilty” to the court’s Rule 11 question, then pivoted to a duress account involving cartel threats directed at a relative.
• The district court rejected the plea twice, emphasizing it would not accept a plea from a defendant who maintained he acted only under coercion.
• Later, on the Government’s motion in limine, the district court precluded a duress defense at trial for failure to meet elements (imminence, non-self-creation, lack of alternatives, causation). The convictions followed.
• On appeal, the Tenth Circuit assumed a factual basis for conspiracy was present, but held there was no plain error in rejecting the plea and no record showing the district court misunderstood its discretion.

Conclusion

United States v. Romero crystallizes two important principles for federal criminal practice in the Tenth Circuit. First, duress is an affirmative defense that ordinarily does not negate the elements of § 846 conspiracy; its invocation does not, by itself, defeat the Rule 11 factual basis for a guilty plea. Second, district courts possess broad discretion to reject a plea when a defendant asserts duress or otherwise protests innocence during the colloquy, and they are not obliged to interrogate the merits of the affirmative defense at that stage. On plain-error review, Romero underscores the premium placed on preservation: litigants must clearly inform the trial court of the legal authority and options they seek it to exercise. For judges, Romero validates the prudent course of declining to accept a plea when the defendant’s own narrative signals an unwillingness to admit guilt unclouded by a live affirmative defense; for practitioners, it is a cautionary roadmap for structuring the plea colloquy and preserving strategic choices without forfeiting favorable dispositions.