Concurrence by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge TROTT; Dissent by Judge KLEINFELD; Concurrence in Dissent by Judge GOULD.
WARDLAW, Circuit Judge:
We write en banc to clarify that the acceptance of a criminal defendant’s guilty plea is a judicial act distinct from the acceptance of the plea agreement itself. Once the district court accepts a guilty plea, the conditions under which the plea may be withdrawn are governed exclusively by Rule 11 of the Federal Rules of Criminal Procedure.1 Where a district court accepts a plea of guilty pursuant to a plea agreement, defers acceptance of the agreement itself, and later rejects the terms of the plea agreement, it must, according to the plain language of Rule 11, “give the defendant an opportunity to withdraw the plea.” Fed.R.Crim.P. 11(c)(5)(B).2 Because Rule 11 contains no provision permitting the district court itself to determine that the plea should be vacated following its rejection of the plea agreement, the district court’s choice to do so here was error. We therefore issue the writ of mandamus.
1. Background.
This appeal arises because, as is commonly the case, Ellis pleaded guilty to lesser charges than those set forth in the original indictment. His plea was entered pursuant to a plea agreement governed by both Rule 11(c)(1)(A) and (C).3 The agreement specifically provided that (i) the government would not prosecute Ellis for any [1201]*1201additional offenses known to it, i.e., the pending first degree murder charge; and (ii) if the court imposed any term of incarceration other than that agreed upon, either party could withdraw from the plea agreement.
The factual basis for Ellis’s plea, as set forth in the plea agreement,4 is as follows: At approximately 7:45 p.m. on March 5, 1999, sixteen-year-old Marciano Ellis called Tacoma Yellow Cab from a payphone outside Winchell’s Donut Shop in Spanaway, Washington, and requested a pick-up at a nearby tavern. Cabdriver Donald Ray Barker arrived some fifteen minutes later to pick up Ellis. As they headed through Fort Lewis, a United States Army reservation,5 Ellis, the lone passenger, shot Barker three times in the back of the head. At approximately 8:20 p.m., a passerby discovered Barker’s taxicab with its headlights on in a shallow ditch alongside North Gate Road in Fort Lewis. Finding the taxicab’s engine running, the passerby investigated further and discovered Barker lying on the front seat with a head wound. He summoned medical assistance. Barker was taken to the Madigan Army Hospital. The Pierce County Medical Examiner determined that Barker was killed by three gunshot wounds to the back of the head.
The government originally charged Ellis with first degree murder and moved to have him tried as an adult due to his prior state court conviction for residential burglary. See United States v. M.C.E., 232 F.3d 1252, 1257 (9th Cir.2000) (holding that Ellis’s transfer to adult status was mandatory).
Over one and one-half years after the shooting, and after what both defense counsel and the prosecutor later characterized as “considerable” discussion, the government and Ellis entered into a plea agreement providing that Ellis would plead guilty to a Superseding Information charging him with second degree murder. The agreement recognized that the court could impose any sentence authorized by law, but provided that either party had the right to withdraw from it if the court pronounced a sentence of incarceration other than 132 months. The parties also agreed that Ellis would not be allowed to withdraw his plea of guilty to the second degree murder charge in the Superseding Information “unless that sentence is other than 132 months of imprisonment.”
On December 8, 2000, Ellis, having waived indictment by a grand jury, entered a plea of guilty to the second degree murder charge set forth in the Superseding Information. During the Rule 11 plea colloquy, the district court inquired of Ellis whether he understood that the court could depart upward or downward upon consideration of all applicable sentencing guidelines. When Ellis hesitated in his response, his attorney attempted to explain to the court that a specific sentence had been provided in the plea agreement, which would be binding once accepted by the court pursuant to Rule 11. The court responded, “Well, I haven’t accepted anything yet.” The court proceeded with the remainder of the colloquy, took Ellis’s plea, set a sentencing date, and ordered a presentence report.
[1202]*1202At the outset of the April 17 sentencing hearing, the district court announced that it would not accept the plea agreement:
I think I should tell you now, I’m not going to accept it. I’ve read the government’s Sentencing Memorandum and the [probation officer’s] recommendation. I can’t accept it.
The presentence report had disclosed three prior juvenile adjudications and seven other arrests and charges for serious crimes. It also revealed that the FBI had developed a somewhat solid case against Ellis for premeditated murder, proof of which would support a first degree murder charge. This evidence included a wiretapped conversation with an informant in which Ellis admitted the planning and murder of the taxicab driver. The United States Probation Officer recommended 151 months’ incarceration, the maximum sentence for second degree murder under the Sentencing Guidelines. The Officer acknowledged that if the court were to impose 151 months’ custody, Ellis would be allowed to withdraw from the plea agreement, but felt that “given the circumstances of this case” he could recommend no less.
The district court allowed argument, during which the government urged it to accept the plea agreement. The government specifically noted that the victim’s family supported the plea agreement and that it was concerned about the evidence available to prove beyond a reasonable doubt the elements of the first degree charge.6 The court nevertheless concluded:
I have read the government’s Sentencing Memorandum, together with the Defendant’s Sentencing Memorandum, and I have listened to the government and the Defendant. I must tell you, justice in my opinion hasn’t been done in this case, the way it stands now. I think the matter should go to a jury. I think the matter should go to a jury, period. So the ball is back in the government’s court.
The court immediately arraigned Ellis on the still pending first degree murder indictment.7 Ellis pleaded “not guilty” to that charge, and the court set the date for jury trial.
Ellis then moved to compel the district court to afford him the opportunity to withdraw his second degree murder guilty plea or to allow him to persist in that plea, citing former Rule 11(e)(4) and United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997). He asserted his absolute right to persist in that plea and indicated his intent to do so. In response, the government indicated it remained “willing to proceed with the second degree murder disposition.”8
[1203]*1203Attempting to glean from the transcript of the hearing on Ellis’s motion an understanding of what actually transpired next is a bit like peering into an ever-shifting kaleidoscope. The district court first treated the government’s position that Ellis had the right to persist in his guilty plea as a “motion to ask the court to reconsider the court’s denial of the plea in this case.” The court denied that motion. Next, asking the government attorney “do you represent the defendant,” the district court refused to follow the government’s suggestion to inquire of Ellis whether, if given the opportunity, he would persist in his plea of guilty, stating:
[W]hat we know now from the record is this court has rejected the defendant’s attempt to plea.
The district court next refused to hear argument on Ellis’s motion (the very reason for the hearing in the first place), stating:
I assume your motion, then, is as to ... rejection of the plea agreement.... It is the court’s position, and the record reflects, that I never intended to accept the plea agreement in this case, nor did I accept the plea in this case.
As far as this court is concerned, the question of the rejection of the plea agreement is not an issue. I never accepted it.
In a last-ditch effort to salvage the proceedings, the Assistant United States Attorney (“AUSA”) asked the court to “put aside what occurred on December 8 [entry of the plea] and to start anew” by allowing the parties to enter into a new plea agreement pursuant to Rule 11 under which Ellis would plead guilty anew to second degree murder charges. In response, the district court stated:
Your offer, the defendant and defendant’s counsel, for this court to proceed in any way under any circumstances in any plea agreements or any pleas is rejected and denied by this court.
Nor would the court allow defense counsel to state for the record whether Ellis desired to enter the new plea pursuant to the newly proposed plea agreement or to allow the parties to file the new plea agreement.
With his only alternative being proceeding to trial on a first degree murder charge — a case even the government no longer desired to charge and was not sure it could prove — Ellis filed this petition for writ of mandamus, which the government did not oppose. Respondent, the district court, opposed the petition, asserting that it had never accepted Ellis’s guilty plea because it did not find a factual basis for the second degree murder charge. A three-judge panel concluded that (i) Ellis in fact had entered a plea of guilty to second degree murder, and (ii) the district court had vacated the guilty plea upon rejecting the plea agreement. It held this procedure to be proper under Rule 11. See Ellis v. United States Dist. Court (In re Ellis), 294 F.3d 1094, 1099-1100 (9th Cir.2002), withdrawn, 313 F.3d 1094 (9th Cir.2002).
II. Rejection of the Plea Agreement.
When the district court rejected the plea agreement, having previously accepted Ellis’s plea, a number of options became available. The option the district court chose — injecting itself into the charging decision by vacating the plea and requiring Ellis to plead to higher charges — was not one of them.
[1204]*1204A. Acceptance of the second degree guilty plea.
There can be no dispute that the district court accepted Ellis’s guilty plea to second degree murder and deferred acceptance of the plea agreement. At the plea colloquy, the district court made the necessary Rule 11 inquiries and took Ellis’s plea:
THE COURT: Mr. Ellis, what is your plea, guilty or not guilty?
THE DEFENDANT: I plead guilty, Your Honor.
THE COURT: Okay. I find that you knowingly and intelligently waived your rights to have this matter presented to a Grand Jury. And you know your rights to a jury trial. And you know your rights to appeal. You know the maximum possible punishment.
THE COURT: What is the sentencing date?
MADAM CLERK: March 16th, 2001.
THE COURT: March 16th, 2001.
MADAM CLERK: 9:30.
THE COURT: 9:30 a.m. or as soon thereafter as the Court may be heard. And there will be a presentence report by a probation officer.
The Criminal Minutes of the December 8, 2000 proceedings accurately reflect that Ellis entered a guilty plea to the Superseding Information that day, and that the plea agreement was filed:
Proceedings: PLEA TO SS INFO:
Court signs WAIVER OF INDICT. Def sworn, ent plea of GUILTY to SS info. Sent set for 3/16/01 at 9:30. Plea agreement filed. File UNSEALED
At sentencing, which had been continued to April 17, 2001, the district court indieat-ed that it had reviewed the Ellis presen-tence report, which it would not have been entitled to do, absent Ellis’s written consent, unless Ellis’s plea had been accepted. Rule 32 provides that
[u]nless the defendant has consented in writing, the probation officer must not submit a presentence report to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has been found guilty.
Fed.R.Crim.P. 32(e)(1).9 Disclosure of the presentence report “to the judge who will pronounce the defendant’s guilt or innocence or who will preside over a jury trial would seriously contravene [Rule 32’s] purpose of preventing possible prejudice from premature submission of the presentence report.” Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969); see also United States v. Cordova-Perez, 65 F.3d 1552, 1555 (9th Cir.1995); United States v. Park, 521 F.2d 1381, 1382-83 (9th Cir.1975) (per curiam) (holding that violation of Rule 32 compels reversal).
Our conclusion that the district court accepted Ellis’s guilty plea on December 8, 2000, accords with that of the three-judge panel that previously reviewed the record. That panel also found that Ellis’s guilty plea to second degree murder had been accepted.
Respondent maintains that because it did not explicitly make a factual basis determination on the record during the plea colloquy pursuant to Rule 11(b)(3), the plea itself was not accepted. Rule 11(b)(3) “requires the court to explore the factual basis in order to determine the accuracy of the plea” but “prescribes no specific method” for doing so. United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir.1983) [1205]*1205(construing former Rule llffi’s factual basis requirement). There is no requirement of an express finding of a factual basis during the plea colloquy, in contrast to the requirements of Rule 11(b)(1). Rather, “it must be established on the record that there is sufficient evidence to support the conclusion that the defendant is guilty,” id., and the court must make the determination “[bjefore entering judgment.” Fed. R.Crim.P. 11(b)(3). The plain language of this subdivision does not speak to acceptance of the plea.
In any event, reviewing the plea colloquy de novo, see United States v. Gaither, 245 F.3d 1064, 1068 (9th Cir.2001), we have no doubt that a factual basis supported Ellis’s plea, and conclude that the district court implicitly so found at the time. During the plea colloquy the court asked the AUSA to “make a factual recitation to the Court” and instructed Ellis to “listen real closely.” The AUSA then recited the stipulated statement of facts from the plea agreement, which provided the factual basis for the plea. The court next explored at length the factual statement, asking Ellis, among other things, whether he “d[id] those things” of his own free and voluntary will. The court requested a copy of the plea agreement and asked Ellis to review the stipulated statement of facts, instructing him to read the precise statement again. After Ellis read the specified paragraphs, the court asked, “Do you hereby accept and agree that it’s your statement here today?” to which Ellis responded, “Yes, your Honor, I do.”
The stipulated statement of facts, in which Ellis admitted he was the sole passenger in Mr. Barker’s taxicab and killed him “with malice aforethought” by shooting him three times in the head, is ample evidence of Ellis’s guilt. The district court did everything required of it under our precedent. Indeed, immediately upon completion of its examination of Ellis concerning his admissions in the statement of facts, the court asked, “Mr. Ellis, what is your plea, guilty or not guilty?” The conclusion is inescapable that the district court implicitly found a factual basis and then proceeded toward acceptance of the plea.
We reject the pre-Hyde view espoused in cases such as Cordova-Perez, 65 F.3d at 1555, that an acceptance of a guilty plea is “impliedly contingent” on the district court’s review of the presentence report. In Cordova-Perez, as here, the defendant pleaded guilty to lesser charges in a separate information and, in a change of plea hearing, the court accepted the guilty plea, ordered a presentence report, and set the sentencing date. Following review of the presentence report, the court concluded that the terms of the agreement inadequately reflected the seriousness of the actual offense conduct and was contrary to the public interest. It then did exactly what the district court did here — it rejected the plea agreement, reinstated the original indictment and set the matter for trial.
Reasoning that “[t]he plea agreement and the plea are ‘inextricably bound up together’ such that deferment of the decision whether to accept the plea agreement carried with it postponement of the decision whether to accept the plea,” we held that by “necessary implication” the acceptance of the guilty plea was contingent upon acceptance of the plea agreement. Id. at 1556. Because the Supreme Court expressly rejected this rationale in Hyde, 520 U.S. at 677-78, 117 S.Ct. 1630, Cordova-Perez is no longer good law.10
[1206]*1206B. Rejection of the plea agreement.
Although it accepted Ellis’s guilty plea, the district court remained free to reject the plea agreement, including the provision for a 132-month sentence. The plain text of Rule 11 compels distinct treatment of the plea agreement and the plea itself, as the Supreme Court concluded in Hyde, 520 U.S. at 674, 117 S.Ct. 1630.
While it is true that the precise rule examined in Hyde was former Rule 32(e), the Court’s holding was predicated on its analysis of Rule 11, as the “principal provision in the Federal Rules of Criminal Procedure dealing with the subject of guilty pleas and plea agreements.” Id. at 673-74, 117 S.Ct. 1630. Hyde, like Ellis, had pleaded guilty pursuant to a plea agreement. The district court accepted the plea, but deferred decision on the plea agreement. We relied on the “inextricably bound” rationale of Cordova-Perez to conclude that if the court defers acceptance of the plea agreement, the defendant could withdraw his plea “for any reason or for no reason,” United States v. Hyde, 82 F.3d 319, 321 (9th Cir.1996), rev’d, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997), until both the plea and the agreement are accepted. The Supreme Court rejected our equation of “acceptance of the guilty plea with acceptance of the plea agreement, and deferral of the plea agreement with deferral of the guilty plea”:
Nothing in the text of Rule 11 supports these conclusions. In fact, the text shows that the opposite is true: Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time.
Hyde, 520 U.S. at 674, 117 S.Ct. 1630.
Once the district court rejects a plea agreement, Rule 11 sets forth the procedure that the court must follow. As the Hyde Court recognized, “[i]f the court had decided to reject the plea agreement, it would have turned to [former] subdivision (e)(4) of Rule 11.” Id. at 675, 117 S.Ct. 1630.
It is worth stepping back to examine the structure of Rule 11 as an aid to understanding its orderly application to the plea and plea agreement procedures. The process entails entering a plea, governed by subsection (a). Next, as set forth in subsection (b), there exist certain prerequisites with which the court must comply during the process of considering and accepting a plea of guilty or nolo contende-re. Rule 11(c)11 then describes the procedures governing plea agreements, including the procedure for reaching a plea agreement, the types of agreements that the government may make12 and disclo[1207]*1207sure of the agreement. Most important, for our purposes, are the provisions contained in subsections (c)(3)(A) and (c)(5). The former provides that when considering a Rule 11(c)(1)(A) or (C) type plea agreement, the court has three options: it may “accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.” Fed. R.Crim.P. 11(c)(3)(A). If, however, the court rejects a Rule 11(c)(1)(A) or (C) plea agreement, Rule 11(c)(5) dictates the procedures to be followed:
[T]he court must do the following on the record and in open court (or, for good cause, in camera):
(A) inform the parties that the court rejects the plea agreement;
(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and
(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.
Fed.R.Crim.P. 11(c)(5). Rule 11 thus contemplates that the district court’s rejection of a plea agreement allows the defendant, not the court, to make the next decision with respect to the status of the plea — ie., whether to withdraw the plea and proceed to trial, or persist in the plea and risk a more severe sentence under the Sentencing Guidelines.
“Plea agreements are contractual by nature and are measured by contract law standards.” United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.2002). The Rules of Criminal Procedure
explicitly envision a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side .... If the court accepts the agreement and thus the Government’s promised performance, then the contemplated agreement is complete and the defendant gets the benefit of his bargain. But if the court rejects the Government’s promised performance, then the [plea] agreement is terminated and the defendant has the right to back out of his promised performance (the guilty plea), just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent.
Hyde, 520 U.S. at 677-78, 117 S.Ct. 1630.
Consistent with these contractual principles, Rule 11 states that upon rejection of the plea agreement, the defendant may withdraw his plea. The only course available for the district court, upon rejecting the plea agreement, is to advise the defendant of his rights, including the right to withdraw the guilty plea. See United States v. Reyes, 313 F.3d 1152, 1156 (9th Cir.2002) (“[T]he options for the district court were either to accept the plea agreements and sentence the defendants accordingly or to reject the agreements and allow the defendants to withdraw their pleas.”); United States v. Fernandez, 960 F.2d 771, 773 (9th Cir.1992) (holding that the “district court erred by failing to either accept the plea agreement and sentence [the defendant] accordingly or to reject the plea agreement and allow [him] to withdraw his guilty plea”). And should the defendant decide to maintain his plea of guilty, the court “may dispose of the case less favorably toward the defendant than the plea agreement contemplated.” Fed.R.Crim.P. 11(c)(5)(C); see also United States v. Serrano, 938 F.2d 1058, 1061 (9th Cir.1991) (“[I]f the district court accepted the sen[1208]*1208tence term, it must resentence[the defendant] in accordance with the plea agreement. ... If, on the other hand, the court rejected the sentence term, it should have informed [the defendant] of its decision and afforded him an opportunity to withdraw his plea.”); 5 Wayne R. LaFave et al., Criminal Procedure § 21.4(g) (1999) (recognizing that if district court imposes sentence higher than that contemplated in type (C) plea agreement, defendant must be given opportunity to withdraw plea).
When his plea agreement was rejected, it became Ellis’s choice whether to: (i) stand by his plea and face a sentence at the highest end of the applicable guidelines range (151 months) or an upward departure to as much as a life term;13 (ii) withdraw his plea and attempt to renegotiate a new plea agreement without a stipulated sentence ceiling; or (iii) withdraw his plea and take his chances at trial on the first degree murder charge. Nowhere does Rule 11 provide that the district court may dictate this choice.
The Kleinfeld dissent asserts that in so holding we create a conflict with two cases from other circuits, each of which predates the Supreme Court’s decision in Hyde where the Court clearly rejected the notion that the plea and the plea agreement were bound up together. See Hyde, 520 U.S. at 674, 117 S.Ct. 1630. Both the Fifth Circuit’s decision in United States v. Foy, 28 F.3d 464 (5th Cir.1994), and the Tenth’s in United States v. Carrigan, 778 F.2d 1454 (10th Cir.1985), could not have taken Hyde’s teachings into account, given that they predate that opinion. In any event, both are readily distinguishable.
The Foy court expressly declined to decide the issue that is before us, finding only that “if the district court erred at all [with regard to its initial acceptance and later rejection of the plea] the error was not ‘plain.’ ” Foy, 28 F.3d at 471. Moreover, Foy explicitly acknowledged that the approach that we advance today is “the better practice” for district courts to follow when accepting pleas. Id.
Nor does our holding present a conflict with Carrigan. That, of course, would be impossible because in Carrigan, the defendant never entered and the district court never accepted a guilty plea. 778 F.2d at 1459. Thus, the Rule 11 provisions that we address here were not implicated in Carrigan.14, Again, the Kleinfeld dissent’s persistence in seeing a conflict where none exists is a result of its refusal to distinguish the plea from the plea bargain. Nor does Carrigan’s ratio decidendi, as described by the Kleinfeld dissent in support of a so-called “conflict” — that the “ultimate effect of the dismissal of charges ... under the plea bargain was to restrict the district court’s ability to impose what it [1209]*1209considered an appropriate sentence,” id. at 1464, — present itself in this case. The district court here was free to, and in fact did, reject the proposed plea agreement because it did not believe the guidelines sentence supported by the negotiated charge was adequate to serve the public interest. Even if Ellis had persisted in his plea to the second degree charge, the district court’s discretion to depart upward to a life sentence was unrestricted. Thus, under our analysis the court’s sentencing function is unrestricted — what is precluded is the court’s participation in the plea negotiations themselves, see Rule 11(c)(1),15 and, as discussed below, the district court’s intrusion into the function of the executive branch.
C. Separation of powers.
While the district court did not violate Rule ll’s proscription against participating in plea negotiations, it effectively and improperly inserted itself into the charging decision by vacating Ellis’s plea and reinstating the first degree murder indictment. The procedures contemplated by Rule 11 guard against an intrusion of this nature into the separate powers of the executive branch. See United States v. Miller, 722 F.2d 562, 565 (9th Cir.1983). As we explained in Miller:
When a prosecutor selects a charge, he has made an executive choice. When a judge sentences a defendant, he has made a judicial choice. When a plea bargain is placed before a court, the necessary interplay between charging and sentencing decisions becomes manifest.
Id. at 564. The plea agreement placed before the district court here specified both a reduced charge and the sentence, thus implicating both judicial and executive decisionmaking.
The district court viewed the sentence resulting from Ellis’s plea bargain as not in the best interest of society, given Ellis’s criminal history and the circumstances of the offense charged. This was a judgment properly within the judicial function. It is also a function protected by Rule ll’s provision for the rejection of a negotiated plea agreement when the court believes a sentence is too lenient or otherwise not in the public interest. Id. at 563. But when the district court made the further decision that the second degree murder charge itself was too lenient, it intruded into the charging decision, a function “generally within the prosecutor’s exclusive domain.” Id. at 565. Because the prosecutor represents the executive branch, the district court’s reinstatement of the first degree murder charge over the government’s objection disregarded the traditional requirement of separation of powers — that the “judiciary remain independent of executive affairs.” Id. The district court’s decision forced the government to prepare to try Ellis on a charge it did not want to bring, on evidence it considered problematic, and in a procedural posture questionable due to Ellis’s prior juvenile status and transfer proceedings.
[1210]*1210In Miller, we noted that “[m]any of the policies underlying Rule 48 are equally applicable to judicial consideration of charge bargains.” 722 F.2d at 566. “[Cjourts should be wary of second-guessing prosecutorial choices” because “[c]ourts do not know which charges are best initiated at which time, which allocation of prosecutorial resources is most efficient, or the relative strengths of various cases and charges.” Id. at 565; see also United States v. Ammidown, 497 F.2d 615, 622 (D.C.Cir.1973) (“In ordinary circumstances, the change in grading of an offense presents no question of the kind of action that is reserved for the judiciary.”). By requiring the reinstatement of the first degree murder charge, the district court overstepped its judicial bounds.
III. Mandamus.
Mandamus is the appropriate remedy. The district court clearly erred in vacating Ellis’s plea. Substantial prejudice would result to him, the government, and the judicial system by requiring all to proceed through trial on first degree murder charges before the district court’s error could be remedied on direct appeal. We have authority to issue writs of mandamus under the All Writs Act, 28 U.S.C. § 1651, which provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
The writ of mandamus is “an extraordinary remedy that may be obtained only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 998 (9th Cir.2003); see also Bauman v. United States Dist. Court, 557 F.2d 650, 654r-55 (9th Cir.1977) (identifying five factors for exercise of discretion to grant mandamus). Three of the five Bauman factors — lack of alternative adequate means of redress, prejudice uncorrectable on appeal, and a clearly erroneous district court order — are present here, and weigh heavily in favor of granting the petition. See Cordoza, 320 F.3d at 998 (“We address the [clear error] factor first, because the others are irrelevant if the district court’s conclusions were legally correct.”); Credit Suisse v. United States Dist. Court, 130 F.3d 1342, 1345-46 (9th Cir.1997) (granting writ because district court’s decision was not “immediately reviewable,” was prejudicial in a manner not correctable on appeal, and constituted clear error); In re Cement Antitrust Litig., 688 F.2d 1297, 1301 (9th Cir.1982) (noting that first two Bauman factors, lack of adequate means of redress and uncorrectable prejudice, “are designed to insure that mandamus, rather than some other form of relief, is the appropriate remedy”).
[1209]*1209Rule 48 also recognizes the traditional balance between judicial and executive power by limiting the district court’s supervisory powers over prosecutorial charging decisions. Under Rule 48, courts must grant leave to the government to dismiss an indictment, information, or complaint unless dismissal is “clearly contrary to manifest public interest.” Rinaldi v. United States, 434 U.S. 22, 30, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) (per curiam); Unit[1210]*1210ed States v. Garcia-Valenzuela, 232 F.3d 1003, 1008 (9th Cir.2000) (discussing the “clearly contrary to manifest public interest” standard). “The decision to dismiss an indictment implicates concerns that the Executive is uniquely suited to evaluate, and a district court should be reluctant to deny its request.” United States v. Gonzalez, 58 F.3d 459, 462 (9th Cir.1995).
The uncorrectable prejudice arising from the district court’s refusal to proceed on the second degree murder charge is evident from a consideration of the possible outcome of a trial on the first degree charge, were we to deny mandamus relief. If the jury acquitted the defendant, a result the government has determined is reasonably possible, Ellis would go free because he would not, under the district court’s ruling, have pleaded guilty to the second degree charge, and could not be tried on that charge. See, e.g., Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 [1211]*1211L.Ed.2d 187 (1977) (“[T]he Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”)- Had the jury, instead, returned a verdict of guilt on the first degree charge, Ellis would have irreparably suffered the prejudice of the additional, and unnecessary, financial and emotional burden of having to stand trial. See Arizona v. Washington, 484 U.S. 497, 503-05, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).
IY. Remand.
Ellis has requested that the case be assigned to a different judge on remand. We make two inquiries when deciding whether to reassign a case. “First, we ask whether the district court has exhibited personal bias requiring recusal from a case.” United Nat’l Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1118 (9th Cir.2001) (citing United States v. Sears, Roebuck & Co., 785 F.2d 777, 779-80 (9th Cir.1986)). Nothing in the record reflects such personal bias.
Second, in the absence of a showing of personal bias, we look to whether “unusual circumstances” warrant reassignment. Id. (citing Sears, Roebuck, 785 F.2d at 780). This inquiry focuses on three factors: “(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.” Id. at 1118-19. Only one of the first two factors must be present to support reassignment. See United States v. Mikaelian, 168 F.3d 380, 388 (9th Cir.1999).
The district judge has read the presentenee report and has expressed strong views on its contents. Whether or not he would reasonably be expected to put out of his mind the information previously disclosed or the conclusions previously drawn, and without ourselves reaching any determination as to his ability to proceed impartially, to preserve the appearance of justice, and consistent with the purposes of Rule 32, we conclude reassignment is appropriate. See Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969) (noting that to allow submission of a presentence report “to the judge who will ... preside over a jury trial would seriously contravene ... [Rule 32’s] purpose of preventing possible prejudice from premature submission of the presen-tence report”). Given the preliminary nature of the plea proceedings, the minimal potential for waste or duplication of judicial resources is outweighed by the need to proceed in a manner that preserves the appearance of justice. Therefore, on remand, the case shall be reassigned to a different district judge within the Western District of Washington.
V. Conclusion.
We GRANT the petition for mandamus and REMAND to the Chief Judge of the Western District of Washington for further proceedings consistent with this opinion.