Introduction

In United States v. Romero (10th Cir. Mar. 26, 2025) (published), the Tenth Circuit affirmed a judgment following a jury conviction on conspiracy and possession-with-intent-to-distribute methamphetamine after the district court rejected the defendant’s attempted guilty plea. The case sits at the intersection of Rule 11 plea procedures, the nature of duress as an affirmative defense, and trial court discretion when a defendant tries to plead guilty while simultaneously asserting facts that would excuse criminal liability.

The core dispute: may a district court refuse to accept a guilty plea where the defendant admits each element of the offense but insists he acted under duress? And must the court, at the plea hearing, probe and resolve the merits of any asserted affirmative defense before deciding whether to accept the plea? Romero answers by recognizing broad district court discretion to reject such pleas and by clarifying that Rule 11’s factual-basis inquiry centers on offense elements, not affirmative defenses. On plain-error review, the Tenth Circuit held it was not error—much less plain error—for the district court to decline the plea without adjudicating duress.

Parties: The United States prosecuted Salvador Nolasco Romero for a methamphetamine distribution conspiracy and possession with intent to distribute. After initially agreeing to plead guilty to the conspiracy count, Romero repeatedly told the court he acted only under coercion. The district court refused to accept the plea. A jury later convicted him on both counts, and he received a 188-month sentence.

Summary of the Opinion

• The Tenth Circuit assumed (because the government did not contest) that Romero’s plea colloquy established a sufficient factual basis for all elements of 21 U.S.C. § 846 drug conspiracy under Rule 11(b)(3).
• It explained that duress is an affirmative defense that ordinarily does not negate the elements of the offense; rather, it excuses culpability despite their satisfaction.
• It held that district courts have discretion either to accept a plea accompanied by an affirmative defense or to reject it when the defendant claims innocence or makes exculpatory assertions.
• Because Romero did not preserve the specific arguments he later advanced on appeal, the court reviewed for plain error and found none. There is no clearly established requirement for a district court to probe or resolve an asserted affirmative defense at the plea hearing before deciding whether to accept the plea.
• The court also rejected the argument that the district court failed to recognize its discretion; absent contrary record indications, appellate courts presume trial judges know and apply the law. The judge’s statements (“I will not accept,” “I cannot accept”) did not show a belief that acceptance was legally forbidden.
• Result: Affirmed.

Factual and Procedural Background

Romero was indicted for (1) conspiracy to distribute methamphetamine, and (2) possession with intent to distribute. Two weeks before trial, he agreed to plead guilty to the conspiracy charge in exchange for dismissal of the possession count. During the Rule 11 colloquy, however, he first said he was “in part” guilty and then described coercion: cartel “agents” allegedly threatened a family member, compelling his delivery of a bag later associated with methamphetamine. After a recess, Romero elaborated that he had sought the cartel’s help to bring his sister-in-law’s daughter into the United States; the cartel conditioned assistance on his “handling” a U.S. drug transaction and then issued threats to ensure his compliance.

The district court declined to accept the plea. Months later, the court granted the government’s motion in limine to preclude a duress defense at trial, finding Romero had not met the elements (imminence, lack of self-created peril, lack of reasonable alternatives, and causal nexus). A jury convicted him on both counts, and he was sentenced to 188 months.

On appeal, Romero argued: (1) the plea colloquy established a sufficient factual basis and did not establish a duress defense; and (2) even if a duress defense existed, the district court failed to recognize its discretion to accept a guilty plea accompanied by an affirmative defense. The government urged waiver/forfeiture and defended the district court’s exercise of discretion.

Analysis

A. Precedents and Authorities the Court Relied Upon

Rule 11(b)(3) and the factual basis inquiry

• Fed. R. Crim. P. 11(b)(3) requires the court to ensure a factual basis for the plea.
• United States v. Kearn, 90 F.4th 1301 (10th Cir. 2024): the court must compare the defendant’s admissions to the offense elements to ensure factual sufficiency.
• United States v. Cushing, 10 F.4th 1055 (10th Cir. 2021): § 846 drug conspiracy elements include agreement to distribute, knowledge of essential objectives/shared purpose, knowing and voluntary participation, and interdependence.

Duress as an affirmative defense that typically does not negate offense elements

• United States v. Bailey, 444 U.S. 394 (1980): duress/necessity excuse criminal conduct where unlawful threats cause the actor to violate the law, even though actus reus and mens rea may be present. The defense stems from lack of a fair opportunity to avoid unlawful conduct.
• Dixon v. United States, 548 U.S. 1 (2006): duress does not negate “knowing” or “willful” mental states; one can knowingly act under duress.
• United States v. Dixon, 901 F.3d 1170 (10th Cir. 2018): recognizes duress as an affirmative defense in the Tenth Circuit framework.
• United States v. Arias-Quijada, 926 F.3d 1257 (10th Cir. 2019): articulates elements of duress (immediate threat of death/serious bodily injury; well-grounded fear; no reasonable opportunity to escape the harm).
• Rosemond v. United States, 572 U.S. 65 (2014) (Alito, J., concurring in part, dissenting in part): except in narrow circumstances, duress does not negate mens rea; it concerns motive, not intent.
• United States v. Tolliver, 730 F.3d 1216 (10th Cir. 2013): motive is not an element of criminal offenses.
• Havens v. James, 76 F.4th 103 (2d Cir. 2023): distinguishes motive from intent.
• Martin v. Ohio, 480 U.S. 228 (1987): a state may place the burden of self-defense on a defendant even though self-defense evidence may overlap with intent; purpose can coexist with an honest belief of imminent danger.
• United States v. Leal-Cruz, 431 F.3d 667 (9th Cir. 2005): one can have a conscious desire to commit the act (reentry) even if the act was a response to threats; duress does not necessarily negate specific intent.

The court also acknowledged a narrow caveat from Dixon: mens rea terms like “malice” that incorporate lack of justification or excuse can conceptually overlap with duress (because “malice” can mean intent “without justification or excuse”). Romero, however, did not involve such a statutory mental state.

Discretion to accept or reject guilty pleas accompanied by affirmative defenses or protestations of innocence

• United States v. Ortiz, 927 F.3d 868 (5th Cir. 2019): district courts may accept guilty pleas even when facts support an affirmative defense that does not negate any offense element.
• United States v. Smith, 160 F.3d 117 (2d Cir. 1998): no error in accepting a plea where a justification defense is alluded to but does not negate elements.
• United States v. Buonocore, 416 F.3d 1124 (10th Cir. 2005): recognizes broad discretion regarding Alford/nolo pleas; courts may adopt policies against accepting them.
• United States v. Lucas, 429 F.3d 1154 (7th Cir. 2005): no error in rejecting a plea where defendant equivocated on an element and invoked duress/stress.
• United States v. Rashad, 396 F.3d 398 (D.C. Cir. 2005): district courts have considerable discretion; not required to accept every plea, particularly when a defendant maintains innocence.
• United States v. Gomez-Gomez, 822 F.2d 1008 (11th Cir. 1987): a judge may reject a guilty plea when the defendant asserts facts negating guilt; acceptance under such circumstances is permitted but not required.
• North Carolina v. Alford, 400 U.S. 25 (1970): courts may accept guilty pleas accompanied by protestations of innocence; acceptance remains discretionary.

Plain error and appellate presumptions

• United States v. Howard, 784 F.3d 745 (10th Cir. 2015); United States v. Weeks, 653 F.3d 1188 (10th Cir. 2011): unpreserved claims are reviewed for plain error.
• United States v. Warrington, 78 F.4th 1158 (10th Cir. 2023): “plain” means clear or obvious under well-settled law—typically requiring Supreme Court/Tenth Circuit precedent or other-circuit consensus directly on point.
• United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007): courts presume trial judges know and apply the law unless the record indicates otherwise.
• United States v. Vidal, 561 F.3d 1113 (10th Cir. 2009): general pleas for leniency are not specific objections; failures to alert the district court to alleged errors trigger forfeiture.
• United States v. Martin, 528 F.3d 746 (10th Cir. 2008): discusses limits on rejecting unconditional pleas (expressing “doubts” about rejection to avoid jury confusion); cited to contextualize later references to In re Vasquez-Ramirez.
• In re Vasquez-Ramirez, 443 F.3d 692 (9th Cir. 2006): addressed unconditional pleas satisfying Rule 11(b); the Tenth Circuit deemed any reliance unpreserved via Rule 28(j) and, in any event, distinguishable because Romero did not offer an unconditional plea unaccompanied by protestations of innocence.

The court also referenced unpublished decisions (e.g., United States v. Tillman (10th Cir. 2012), United States v. Demikh (8th Cir. 2017)) to demonstrate the absence of any contrary, clearly established obligation to probe affirmative defenses during a Rule 11 colloquy and to illustrate acceptance of judicial discretion in rejecting pleas when defendants equivocate.

B. The Court’s Legal Reasoning

1. Two preliminary matters

• First, duress and offense elements: The court explained the orthodox view—duress is an affirmative defense that ordinarily excuses criminal conduct without negating elements like knowledge or purpose. Thus, a court may find a Rule 11(b)(3) factual basis for conspiracy even if the defendant simultaneously claims duress. The panel did not definitively resolve whether duress could ever negate the conspiracy element of “voluntary participation,” but proceeded on the assumption (shared or at least not disputed by the government) that it did not negate the elements here.
• Second, discretion at the plea stage: Where a defendant admits the elements, a district court may accept a guilty plea even if the facts also support an affirmative defense. Equally, the court may reject a plea where the defendant asserts innocence or exculpatory facts. Rule 11 does not compel acceptance in such circumstances.

2. Application to Romero

• Assuming a sufficient factual basis: Romero’s admissions—coordinating and facilitating a 12-pound methamphetamine delivery through Ms. Ortega, including renting her car, communicating with her, funding the trip, and directing her to Minnesota—were enough to support the conspiracy elements under § 846. The court therefore assumed Rule 11(b)(3) was satisfied.
• Plain-error framework: Romero did not ask the district court to accept the plea on the theory that duress need not be resolved at the plea stage, nor did he argue that the court had discretion to accept a plea notwithstanding his duress assertions. Those arguments were forfeited and reviewed for plain error.
• No plain error in declining to adjudicate duress at the plea hearing: No authority requires the district court to cross-examine a would-be pleader about the merits of an affirmative defense during the plea colloquy; contrary indications exist. The court also noted the practical setting: Romero shifted accounts mid-colloquy; defense counsel appeared unprepared for a duress adjudication; and there was no temporal pressure—if counsel later decided duress lacked merit, a renewed plea was possible. Under these circumstances, rejecting the plea was “the prudent course.”
• No showing the court misunderstood its discretion: On appeal, Romero pointed to the judge’s phrasing (“I cannot accept …,” “I could not accept …”). The Tenth Circuit presumes judges know the law absent contrary indications. The judge also said, “I will not accept the plea,” which reads as a discretionary choice. Ordinary usage of “cannot” can reflect choice, not legal prohibition. Unlike cases where courts expressly declared they could not accept a plea “under the law,” nothing in the record demonstrated a misapprehension of authority.

The panel also noted an internal view: Judge Rossman would have found one of Romero’s arguments preserved, but she agreed the argument fails on the merits even if preserved. Thus, the outcome was unanimous.

C. Impact and Practical Consequences

1. Plea practice in the Tenth Circuit

• District courts retain broad discretion to accept or reject guilty pleas when defendants assert affirmative defenses like duress during the colloquy. Rule 11(b)(3) demands a factual basis for the elements; it does not require the court to adjudicate affirmative defenses at that stage.
• Defendants cannot assume that admitting elements while simultaneously claiming excuse will secure acceptance of the plea; judges may treat such assertions as protestations of innocence and decline the plea.
• Where counsel wants a plea accepted despite an affirmative-defense narrative, counsel should explicitly alert the court that it has discretion to accept the plea and preserve that position. Failure to do so will invite plain-error review and make reversal unlikely.

2. Duress doctrine

• Romero reinforces the mainstream view that duress usually does not negate mens rea or actus reus; it excuses conduct notwithstanding their presence. This supports plea-acceptance decisions that focus on whether elements are admitted, not whether an affirmative defense would ultimately succeed.
• Open question flagged, not decided: whether duress could conceptually negate a particular element in certain offenses (e.g., those using mental states like “malice” defined to exclude justification). Romero does not foreclose such arguments in future cases with different statutory language.

3. Alford and nolo contendere considerations

• Because district courts may adopt general policies against Alford or nolo pleas (Buonocore), counsel should not assume an alternative plea posture will overcome a court’s doubts when a defendant insists on exculpatory narratives.

4. Appellate preservation and standards

• Romero is a cautionary tale on preservation. Without a timely, specific objection informing the district court of the alleged error (for instance, that the court has discretion to accept the plea despite duress assertions), the issue will be reviewed only for plain error—a demanding standard rarely met in fluid plea settings without controlling authority.

5. Trial-stage ramifications

• Romero also underscores that even when a plea fails because a defendant asserts duress, the defense may later be excluded at trial if the evidentiary proffer does not satisfy duress’s strict elements (imminence, no self-created peril, no reasonable alternatives, causal nexus). The defendant risks both losing the plea’s benefits and the ability to present the defense at trial if the record is thin.

Complex Concepts Simplified

• Affirmative defense: A legal excuse or justification that, even if the prosecution proves every element of the offense, can defeat liability. The defendant typically bears some burden of production (and often persuasion) on the defense.
• Duress: Excuses criminal conduct when the defendant acts under an unlawful, imminent threat of death or serious bodily injury, with a well-grounded fear the threat will be carried out and no reasonable opportunity to avoid the harm. It usually does not erase intent; it explains why the defendant acted despite intending the acts.
• Mens rea vs. motive: Mens rea is the mental state the offense requires (e.g., knowingly, willfully, purposefully). Motive is the reason for acting (e.g., fear, profit, compassion). Criminal law generally requires mens rea, not motive. Duress relates to motive.
• Rule 11(b)(3) factual basis: Before accepting a plea, the judge must ensure facts admitted by the defendant fit the elements of the offense. The judge need not resolve affirmative defenses at this stage unless they negate an element.
• “Voluntary” in conspiracy vs. voluntariness in general: The conspiracy element that the defendant “knowingly and voluntarily participated” speaks to intentional entry and participation in the agreement, not necessarily to whether the act was uncoerced in the moral sense. Duress can coexist with intentional participation; it may excuse, not negate, that participation.
• Alford plea: A defendant pleads guilty while maintaining innocence; courts may accept but are not required to, and may have policies disfavoring such pleas.
• Plain error: An appellate standard for unpreserved issues requiring (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings. It is intentionally difficult to satisfy.

Practical Takeaways for Practitioners

• If a defendant intends to plead guilty, avoid injecting unvetted affirmative-defense narratives during the Rule 11 colloquy. Doing so can prompt the court to reject the plea.
• If the client wishes to preserve an affirmative defense yet still plead guilty, be prepared to:
  • Explicitly advise the court that it has discretion to accept the plea notwithstanding the defense (and preserve that argument), and
  • Explain why the defense does not negate any element and why acceptance would be appropriate.
• When duress is asserted, ensure the record can support imminence, lack of reasonable alternatives, absence of self-created peril, and causal nexus; otherwise, the defense may be excluded at trial even after a plea fails.
• Judges: When a defendant equivocates or asserts exculpatory facts, Romero validates declining the plea without adjudicating the defense at the plea hearing, particularly where counsel appears unprepared or the narrative shifts.

Conclusion

United States v. Romero cements, in a published Tenth Circuit decision, a pragmatic and doctrinally grounded approach to pleas complicated by affirmative-defense assertions. The court underscores two key propositions:

• Duress is ordinarily an excuse that does not negate offense elements; thus, a proper Rule 11(b)(3) inquiry focuses on whether the defendant’s admissions satisfy the elements, not on resolving affirmative defenses at the plea stage.
• District courts have broad discretion to accept or reject guilty pleas when defendants assert innocence or exculpatory facts; they are not required to adjudicate the merits of a duress claim mid-colloquy before deciding whether to accept a plea.

The decision also models rigorous plain-error analysis and reinforces the appellate presumption that trial judges know and correctly apply the law absent clear contrary indications. For defendants and counsel, Romero highlights the strategic risks of attempting to preserve an affirmative defense while pleading guilty. For trial courts, it validates declining such pleas without turning the Rule 11 colloquy into a mini-bench trial on duress. And for the law of duress, Romero aligns the Tenth Circuit with the mainstream view that duress ordinarily excuses rather than negates criminal liability—while leaving open narrow, statute-specific possibilities where the mental state itself embeds justification concepts.