United States v. Papke

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 12, 2025
• Docket: 24-5094
• Status: Published

Opinion

Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 12, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-5094

JEREMY DUSTIN PAPKE,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:22-CR-00084-JFH-1) _________________________________

Neil D. Van Dalsem, Assistant Federal Public Defender, Office of the Federal Public Defender, Muskogee, Oklahoma (Scott A. Graham, Federal Public Defender, with him on the briefs), for Defendant-Appellant.

Steven J. Briden, Assistant United States Attorney, Office of the United States Attorney, Tulsa, Oklahoma (Clinton J. Johnson, United States Attorney, with him on the brief), for Plaintiff-Appellee. _________________________________

Before McHUGH, EID, and FEDERICO, Circuit Judges. _________________________________

McHUGH, Circuit Judge. _________________________________

Defendant-Appellant Jeremy Dustin Papke appeals from a district court’s

rejection of two plea bargains proposed to resolve criminal charges stemming from

Mr. Papke’s sexual abuse of a family member. Mr. Papke was indicted on three Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 2

counts for sexual abuse of a minor. Each count was punishable by a different

sentence: Count One carried a maximum sentence of fifteen years, Count Two carried

a maximum of two years, and Count Three carried a minimum of fifteen years and a

maximum of life imprisonment.

The Government and Mr. Papke eventually entered into a plea agreement

under which he agreed to plead guilty to Count Three, the Government agreed to

move to dismiss Counts One and Two, and the parties stipulated to a maximum

sentence of fifteen years. The district court rejected that agreement, finding a fifteen-

year sentence would insufficiently punish Mr. Papke for his conduct. The parties then

entered into a second plea agreement under which Mr. Papke agreed to plead guilty

to Counts One and Two and in exchange, the Government would move to dismiss

Count Three. The district court rejected that plea agreement as well, finding it

improperly limited the court’s sentencing discretion by leaving two counts with a

maximum statutory sentence of seventeen years. Finally, the parties entered a third

plea bargain under which Mr. Papke agreed to plead guilty to all three counts and the

parties stipulated to a maximum sentence of 235 months. The district court accepted

the third plea agreement and sentenced Mr. Papke to 235 months, just shy of twenty

years’ incarceration.

On appeal, Mr. Papke argues the district court abused its discretion by

rejecting the first two plea agreements, and he asks that the case be assigned to a new

judge on remand. The Government disputes that the court wrongly rejected the first

plea agreement, but it agrees that the district court abused its discretion by rejecting

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the second plea because the plea was a “charge bargain” that the district court had

limited discretion to reject.

We hold that although the district court acted within its discretion by rejecting

the first plea agreement, it abused its discretion by rejecting the second. The second

plea agreement was a charge bargain under which the Government agreed to dismiss

one charge in exchange for Mr. Papke’s guilty plea to two other charges, and it did

not contain any agreement as to the sentence. This type of plea bargain represents an

exercise of prosecutorial discretion to which district courts must show deference to

preserve the doctrine of separation of powers. Because the district court did not show

due deference to the Government’s reasons for entering the second plea agreement

here, we remand to the district court with instructions to vacate Mr. Papke’s

convictions and sentence and we remand for further consideration of the second plea

agreement. After due consideration, we instruct the district court to afford the

appropriate deference to charge pleas in the future but we do not reassign the case to

a different judge.

I. BACKGROUND

On March 23, 2022, a grand jury returned a three-count indictment against

Mr. Papke in the U.S. District Court for the Northern District of Oklahoma. Count

One alleged that in September 2021, Mr. Papke “knowingly engaged in a sexual act

with L.P., a child . . . who had attained the age of 12 years, but had not attained the

age of 16 years, and was at least four years younger than” Mr. Papke, in violation of

18 U.S.C. §§ 1151, 1153, and 2243(a). ROA Vol. I at 15. Count Two alleged that in

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September 2021, Mr. Papke “knowingly engaged in, and attempted to engage in,

sexual contact with L.P.,” in violation of 18 U.S.C. §§ 1151, 1153, and 2244(a)(3).

Id. at 16. And Count Three alleged that in September 2021, Mr. Papke “knowingly

persuaded, induced, enticed, and coerced, and attempted to persuade, induce, entice,

and coerce, L.P. . . . to engage in [] sexual activity,” in violation of 18 U.S.C.

§§ 1151, 1152, and 2422(b). Id. at 17. Information in the presentence investigation

report (“PSR”)—which Mr. Papke did not dispute—showed that he began abusing

L.P. in 2015, when she was only seven years old.

A. First Plea Agreement

On June 17, 2022, Mr. Papke and the Government reached a plea agreement

(the “First Plea”). The parties entered into the plea agreement under Federal Rule of

Criminal Procedure 11(c)(1)(C), which allows parties in a criminal case to “agree

that a specific sentence or sentencing range is the appropriate disposition of the

case.” If a district court accepts a Rule 11(c)(1)(C) plea, the parties’ agreed-upon

sentence is binding on the district court. Fed. R. Crim. P. 11(c)(1)(C).

In the First Plea, Mr. Papke agreed to plead guilty to Count Three, and in

return the Government would move to dismiss Counts One and Two. The parties also

agreed that the district court could sentence Mr. Papke to no less than thirteen years

and no more than fifteen years. A magistrate judge recommended acceptance of the

First Plea and ordered U.S. Probation and Pretrial Services to prepare a PSR. The

PSR calculated a recommended sentencing range under the U.S. Sentencing

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Commission Guidelines of 151 to 188 months, based on the severity of Mr. Papke’s

conduct and his lack of prior criminal history.

The district court conducted a sentencing hearing on August 23, 2023. At the

outset, the district court told the parties that it had “concerns” about the First Plea

and asked the Government if “the victim [was] consulted in the context of the plea

deal that was struck here?” ROA Vol. I at 62. The Government confirmed that it had

consulted both L.P. and her father regarding the plea agreement and told the court

they both supported it. The Government explained it had entered the First Plea to

“avoid having to put the child victim through the crucible of a trial and testimony and

all the uncertainty” involved in a trial. Id. at 63. Next, L.P. spoke to the court and

described how Mr. Papke’s actions had scarred and harmed her.

After L.P. gave her statement, the district court stated it was concerned about

“whether this plea agreement is sufficient considering the nature of the offense here.”

Id. at 67. The court then asked whether L.P. and her family wanted the court “to

accept this deal,” and the Government detailed prior conversations with L.P. and her

family indicating that they supported the First Plea. Id. at 67–68. The Government

also noted that the stipulated sentencing range was within the Guidelines range, and

stated that, in its opinion, the stipulated length “of imprisonment . . . paired with

lifetime supervised release is appropriate.” Id. at 68. The court then heard from L.P.’s

father, who spoke about the severe harm Mr. Papke had caused and expressed that, in

his view, Mr. Papke should spend the rest of his life in prison for his crimes. Even so,

L.P.’s father asked the court to accept the First Plea because he believed “a trial

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would be really hard on” L.P., and her family wanted her to “start healing.” Id. at 71.

Finally, the court directly asked L.P. if she supported the First Plea, and she

confirmed that she wanted the court to accept it.

After taking a short recess, the court told the parties it had decided to reject the

First Plea because it did not believe the deal “adequately reflect[ed] the seriousness

of the offense and . . . would undermine the purposes of sentencing.” Id. at 72–73.

The court acknowledged that L.P. and her family wanted the court to “accept the

agreement.” Id. at 75. But “at the end of the day,” the court explained, it was “the

court that must live with the agreement, and certainly Mr. Papke must live with it as

well.” Id.. The court also emphasized that it did not take sentencing decisions

“lightly,” even though in the court’s view “when counsel are done with the [case],

[they] move on to the next case.” Id.

On September 18, 2023, the parties filed a joint motion to reconsider, in which

they emphasized that L.P. and her father supported the First Plea. The parties told the

court that L.P. was dealing with serious mental health challenges and that her father

was worried that the specter of testifying at trial might amplify some of L.P.’s

struggles. The parties also noted the First Plea was informed by their evaluation of

the risks inherent in a jury trial. Thus, the parties asked the court to accept the First

Plea.

Several days later, the district court continued the sentencing hearing to

address the motion to reconsider. The court noted the motion did not contain “any

additional information that [the court] didn’t already know.” ROA Vol. I at 78. The

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Government told the court that it had concerns about L.P.’s testimony because she

had made some inconsistent statements and had forgotten some facts. The

Government also noted that because L.P. had experienced suicidal ideations and at

times engaged in self-harm, it had “serious concerns about the mental and physical

impact that a trial and sitting in the witness stand would have on this victim.” Id.

at 80.

The district court responded that, from what it had observed at the initial

sentencing hearing, it believed L.P. “was very capable of testifying at trial.” Id. at 82.

But the court acknowledged that it had not “visited with her like” the Government

had and that it understood this concern. Id. The court also remarked that regardless of

whether the stipulated sentence was within the Guidelines range, the court was not

required “to sentence only within the [G]uidelines” and had discretion to impose

consecutive sentences for each count, regardless of the Guidelines range. Id.

at 83–84. The court added:

And as I said before, counsel can make an agreement and they might be able to live with the agreement but it’s not your sentence. There’s two people that live with the sentence following a sentencing, the defendant and me. And we live with that and you move on to the next case.

And as I said before, it seems that your office has fallen in love with the 11(c)(1)(C). I’ve said it before. And we had a visiting judge here not too long ago that in one day rejected three 11(c)(1)(C)s. So you can continue to do that and you can try to make this sentence your sentence, or you can give me some latitude. That’s what I have to say about it.

Id. at 87.

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The court then told the parties that it would not accept the plea, stating that the

court’s decision had not changed and it could not “live with” the sentence stipulated

in the First Plea. Id. at 89. Mr. Papke’s counsel stated on the record that the court’s

“rejection of the plea agreement [was] procedurally” and “substantively

unreasonable.” Id. The court asked counsel if she could cite “any case in this district”

involving “a sentence that is anywhere close to this for any circumstances that are

similar to this?” Id. at 89–90. Unable to cite such cases, counsel asserted that the

court’s “dissatisfaction” with the stipulated sentence was not a sufficient reason to

reject a plea agreement. Id. at 90. In response, the district court elaborated its reasons

for rejecting the First Plea: the stipulated sentencing range would not “reflect the

seriousness of the offense including the relevant conduct,” “be adequate to deter the

defendant,” “promote the respect for the law,” “provide just punishment for the

offense,” nor protect “the public from further crimes by this defendant given the

length of time in which he was comfortable abusing the child.” Id. at 91. At this

point, Mr. Papke withdrew his guilty plea and the district court reset the case for trial.

Id. at 91–92.

B. Second Plea Agreement

On November 3, 2023, the parties entered into a second plea agreement (the

“Second Plea”). Under this agreement, Mr. Papke agreed to plead guilty to Counts

One and Two, and in exchange the Government agreed to dismiss Count Three. The

Second Plea contained no conditions or agreements regarding the sentence the district

court could impose. The plea noted that Count One carried a maximum sentence of

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fifteen years, Count Two carried a maximum sentence of two years, and the district

court had discretion to impose any sentence up to the statutory maximum for both

counts and to run the sentences consecutively. Thus, the Second Plea authorized a

maximum sentence of seventeen years, a two-year increase from the maximum

sentence of fifteen years in the First Plea. At a change of plea hearing, a magistrate

judge recommended acceptance of the Second Plea. And in an updated PSR, a

probation officer calculated a Guidelines range of 188 to 235 months’ imprisonment.

Prior to the sentencing hearing, the district court sua sponte appointed a

guardian ad litem (“GAL”) for L.P. After interviewing L.P., L.P.’s family, and

counsel for both parties, the GAL submitted a report to the court. The GAL told the

court that L.P. “would love for the court to sentence Mr. Papke to [seventeen] years,”

but asked the court “to sentence [him] to at least [fifteen] years and a lifetime

supervision.” ROA Vol. II at 18. The GAL’s report also discussed many challenges

L.P. had faced while trying to cope with and heal from Mr. Papke’s abuse. The GAL

further told the court that “L.P. wants this case over and would request if there is any

way the sentencing can be moved up so L.P. can get some closure, she would greatly

appreciate it.” Id. at 18.

On May 22, 2024, the district court conducted a second sentencing hearing to

consider the Second Plea. The court adopted the unobjected-to PSR and found that

the Guidelines range was 188 to 235 months. The court surveyed the history of the

case and its reasons for rejecting the First Plea, noting that “the record’s pretty clear

on where [the court] was at the time [of] that plea agreement.” ROA Vol. I at 138.

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The court expressed concerns about the Second Plea and stated it was “questioning

what’s going on here, to say the least.” Id. The court stated that it believed the

sentence contemplated under the Second Plea was “light under the circumstances.”

Id. at 139.

In its statement to the court, the Government explained that the Second Plea

was a “charge bargain” under Federal Rule of Criminal Procedure 11(c)(1)(A). The

Government cited and discussed two Tenth Circuit cases demonstrating that the

Second Plea was a charge bargain and that “the court’s discretion to reject [charge

bargains] is more narrow.” Id. at 139–40 (first citing United States v. Robertson, 45

F.3d 1423 (10th Cir. 1995), then citing United States v. Vanderwerff, 788 F.3d 1266

(10th Cir. 2015)). The Government then explained its reasons for entering into the

Second Plea: (1) the plea would save L.P. from the rigors of cross-examination at

trial; (2) L.P. supported the plea; (3) the prosecution had strategically chosen not to

take the case to trial based on its evaluation of the evidence; and (4) the Government

believed a recent published opinion, United States v. Streett, 83 F.4th 842 (10th

Cir. 2023), would make it difficult to prove Count Three beyond a reasonable doubt.

Mr. Papke’s counsel also argued the court should accept the Second Plea to provide

finality, both for Mr. Papke and L.P.’s family. And last, the GAL told the court that

L.P. hoped it would accept the Second Plea because she “wants some finality.” Id.

at 145.

After taking a recess to review the cases the Government had cited, the district

court told the Government it was “not concerned at all about the Streett case.” Id.

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at 147. Instead, the court was “concerned about making sure that [its] decision is

appropriate in terms of justice,” although it was “very sympathetic to the victim”

because “the case has been [dragged] out for so long.” Id. The court was particularly

troubled by the allegations in the PSR that Mr. Papke had abused L.P. for “as much

as six years,” and that the Second Plea did “not adequately reflect the gravity of [his]

conduct.” Id. at 148. The court also chastised the parties for entering into another

plea agreement, stating it could not “have been any more clear about where we were

headed in this case, but nevertheless [the parties] wasted a couple more months.” Id.

at 147. The court then rejected the Second Plea “pursuant to . . . Rule 11(c)(3)(A),”

finding that it “would not meet the requirements and objectives set forth in [] 18

U.S.C. § 3553(a).” Id. at 148–49. Next, the court affirmatively withdrew “the plea on

behalf of” Mr. Papke, because the court would not be “proceeding with this plea

agreement.” Id. at 149. At the close of the hearing, the court set a trial date

approximately two months later, in mid-July.

C. Third Plea Agreement

On June 14, 2024, the parties entered into a third plea agreement under

Rule 11(c)(1)(C) (the “Third Plea”). In the Third Plea, Mr. Papke agreed to plead

guilty to all three counts, and in return the Government stipulated to a sentence of

180 months for Count One, 24 months for Count Two, and 235 months for Count

Three, with all sentences to run concurrently. Under the Third Plea, therefore, the

maximum sentence Mr. Papke could receive was 235 months, approximately nineteen

and a half years.

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The same day, the district court conducted a change of plea hearing for the

Third Plea at which it accepted Mr. Papke’s plea, while reserving its “acceptance of

the plea agreement until the time of sentencing.” ROA Vol. III at 85. During the

hearing, the GAL told the court that she had stayed in touch with L.P. and her family

“through all the stages of the different plea agreements,” and that they supported the

Third Plea. ROA Vol. III at 83–84. The GAL relayed that L.P. “had an emotional

relapse and breakdown” after the district court rejected the Second Plea, and that L.P.

had “cried herself to sleep” the prior night because she was worried the court would

also reject the Third Plea. Id. at 84.

Mr. Papke’s counsel made a statement preserving Mr. Papke’s “objection to

the court’s rejection of the” Second Plea, and counsel noted Mr. Papke had agreed to

the Third Plea only because the court had rejected the prior agreement. Id. at 86–87.

Counsel argued “[i]t was an error and an abuse of discretion for the court to reject

the” Second Plea because it “was a charged bargain” and the district “court only has

limited discretion to reject a charged bargain.” Id. at 87. In counsel’s view, the court

had unreasonably “interfere[d] with the charging decisions and prosecutorial

discretion of the United States Attorney’s Office in this case.” Id. Finally, counsel

noted that the district court had failed to “make adequate factual findings supporting

its conclusion that the [Second Plea] resulted in an unreasonable resolution of this

case.” Id. The court responded, “Thank you, counsel. I realize you’re making your

objection for the record but the court’s response is that I entirely disagree.” Id. at 88.

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A week later, the district court sua sponte issued an order “to summarize the

existing record and address misapprehensions by” both parties. ROA Vol. I at 178.

The court noted that it had “already sufficiently articulated” why it had rejected the

First and Second Pleas. Id. at 182. But the court said that “it seems the parties

weren’t listening” to its prior articulations, and thus it had issued a written order “so

that no party may claim ignorance.” Id. at 182. The court acknowledged that the

Government had entered both pleas because it believed a quick disposition of the

case was in L.P.’s best interests and it wanted to avoid retraumatizing L.P. by making

her testify at trial. The court stated it was “sympathetic” to L.P.’s concerns and

acknowledged that the Government had a clearer picture of her ability to testify at

trial, although the court stated it still believed she could ably testify at trial “based on

her courtroom demeanor and the statement she read into the record.” Id. at 183. The

court also acknowledged and dismissed the Government’s prior concern that it would

have trouble proving Count Three in light of recent Tenth Circuit precedent. See id.

at 183 & n.4. And the court again expressed disapproval of the Government’s

agreement to a plea under Rule 11(c)(1)(C), noting that “it seems that [the U.S.

Attorney’s Office] has fallen in love with the 11(c)(1)(C) [bargain].” Id.

The court next explained that although “[t]he parties construe their bargains as

charge bargains” that the court had less discretion to reject, the parties in fact had

“misapprehend[ed] the Tenth Circuit’s taxonomy of plea bargains.” Id. at 184. In the

court’s view, the First and Second Pleas were both “hybrid bargains” that it had

broad discretion to reject. Id. The court opined that the First Plea was a hybrid

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bargain because it required the Government to dismiss Counts One and Two while

also “limit[ing] the Court’s sentencing power by dictating a sentencing range of

156–180 months.” Id. And the court ruled that the Second Plea “was no better”

because it “limit[ed] the Court’s sentencing power by dismissing the count with the

greatest exposure and” leaving “two counts that, if run consecutively at their

statutory maximums, would total 204 months.” Id.

The court explained that both pleas were “insufficient for the offense conduct,

factoring in all relevant conduct and history leading up to the one-month window

charged in the indictment.” Id. at 185. The court also conveyed that “yearslong

sexual abuse of minor children by adults in positions of authority is sadly too

common in Northeastern Oklahoma.” Id. at 186. Based on the court’s experience

sentencing similar criminal defendants, it believed the First and Second Pleas “would

have created—not prevented—a sentencing disparity among similarly situated

defendants who have been sentenced in this Court.” Id. In closing, the court quoted

precedent stating that its “refusal to permit the parties to bind its sentencing

discretion constitutes the exercise of sound judicial discretion,” id. (quoting

Robertson, 45 F.3d at 1439), and it noted in passing that “[t]he parties apparently

missed this sentence . . . when they cited Robertson as support for their proposition

that the Court had exceeded its discretion,” id. at 186 n.6.

On August 9, 2024, the district court conducted a final sentencing hearing.

With no further arguments from counsel, the court adopted the Third Plea and

sentenced Mr. Papke to 180 months in custody for Count One, 24 months in custody

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for Count Two, and 235 months in custody for Count Three, all to run concurrently.

The court also sentenced Mr. Papke to supervised release for life on each count.

Immediately after the sentencing hearing concluded, the district court’s

courtroom deputy told Mr. Papke’s counsel that the district court was updating its

“Chamber Rules to provide that [it] would no longer consider Rule 11(c)(1)(C) plea

agreements.” Appellant’s Br. at 22–23. And counsel attached to Mr. Papke’s opening

brief an email that counsel subsequently received from the courtroom deputy that

contained the district court’s update rules. See Appellant’s Br. Attach. 2. According

to that email, the only “major change” to the Chamber Rules was that the court would

“no longer accept plea agreements made pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C).” Id. at 1, 5.

II. JURISDICTION

The district court had jurisdiction over the federal charges against Mr. Papke

under 18 U.S.C. § 3231. Mr. Papke timely filed a notice of appeal of the district

court’s August 12, 2024 judgment on August 13, 2024. We have jurisdiction under

28 U.S.C. § 1291.

III. LEGAL STANDARDS

A. Standard of Review

“We review a district court’s decision not to accept a plea agreement for abuse

of discretion.” Vanderwerff, 788 F.3d at 1271. “A district court abuses its discretion

if its adjudication of a claim is based upon an error of law.” United States v. Hurst,

94 F.4th 993, 1001 (10th Cir. 2024) (quotation marks omitted). If “a district court

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predicates its ruling on an improper and irrelevant factor, this error provides a strong

indication that the district court abused its discretion.” Vanderwerff, 788 F.3d at 1271

(internal quotation marks omitted). Similarly, it is an abuse of discretion for a district

court to rely on “a clearly erroneous finding of fact.” United States v. Battle, 706

F.3d 1313, 1317 (10th Cir. 2013).

B. Legal Standards for Plea Bargains

Under Federal Rule of Criminal Procedure 11, “[a]n attorney for the

government and the defendant’s attorney . . . may discuss and reach a plea

agreement. The court must not participate in these discussions.” Fed. R. Crim.

P. 11(c)(1). Rule 11 authorizes four types of plea bargains: (1) “charge bargains”

under Rule 11(c)(1)(A), which are “predicated on the dismissal of some counts”;

(2) “sentence bargains” under Rule 11(c)(1)(B), which are “predicated either on the

[government’s] recommendation of or agreement not to oppose a particular

sentence”; (3) sentence bargains under Rule 11(c)(1)(C), which are “predicated on

the guarantee of a particular sentence”; and (4) “hybrid bargains containing part

charge and part sentence bargains.” Robertson, 45 F.3d at 1437.

A “district court enjoys substantial discretion in deciding whether to accept or

reject a plea agreement under Rule 11.” United States v. Rakes, 510 F.3d 1280, 1286

(10th Cir. 2007). But “different types of plea bargains implicate different types of

discretion and power.” Robertson, 45 F.3d at 1437. District courts “enjoy

considerable discretion in their consideration of sentence bargains,” Vanderwerff,

788 F.3d at 1271, because the “imposition of sentence is a matter of discretion for the

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district court” and the “prosecution’s role in sentencing bargains is strictly advisory,”

Robertson, 45 F.3d at 1437. Thus, sentence bargains necessarily “infringe on the

sentencing discretion of district courts,” and a district court may properly reject a

particular sentence or hybrid bargain to preserve “its discretion in sentencing.” Id.

at 1439.

On the other hand, while “[c]ourts enjoy considerable discretion in their

consideration of sentence bargains,” their discretion “is more limited with respect to

charge bargains.” Vanderwerff, 788 F.3d at 1271. The “zone of judicial discretion is

ordinarily quite limited” for charge bargains because “charge bargaining is a

province primarily for the exercise of prosecutorial—not judicial—discretion.” Id.

at 1277. Although a prosecutor’s decision to dismiss charges may prevent a district

court from sentencing the defendant for such charges, the “court’s sentencing

discretion is implicated in this situation in precisely the same manner it is implicated

by prosecutorial decisions to bring charges in the first place, where prosecutorial

discretion is nearly absolute.” Robertson, 45 F.3d at 1438. District courts are often

ill-positioned to “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. (citations omitted) (quoting United States v. Miller,

722 F.2d 562, 565 (9th Cir. 1983)). Consequently, when evaluating a charge bargain,

a district court must be wary of “second-guessing prosecutorial choices,” because in

so doing the court may abridge “the doctrine of separation of powers” by

subordinating the executive branch’s discretionary view of how to prosecute the case

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to the court’s own view of how the case should be resolved. Id. Thus, district courts

must “accord proper deference to[] the government’s exercise of prosecutorial

discretion in fashioning a charge bargain.” Vanderwerff, 788 F.3d at 1278.

Whenever a district court rejects any plea bargain—whether a charge bargain,

sentence bargain, or hybrid bargain—it “must set forth, on the record, the

prosecution’s reasons for framing the bargain and the court’s justification for

rejecting it.” Robertson, 45 F.3d at 1438. This requirement helps ensure that “district

courts exercise sound judicial discretion and adequately respect the principle of

prosecutorial independence.” Id. In reviewing the rejection of a plea agreement, we

remember that “[a] district court’s discretion to reject plea agreements is not without

limit and varies depending on the content of such a bargain.” Id.

IV. DISCUSSION

Mr. Papke raises three arguments on appeal. First, he argues the district court

abused its discretion by rejecting the First Plea—which he concedes was a hybrid

bargain—because the district court did not adequately explain why it was rejecting

the bargain and exhibited a negative attitude towards plea bargains generally.

Second, he argues the district court erroneously characterized the Second Plea as a

hybrid bargain rather than a charge bargain and that the court abused its discretion by

rejecting the Second Plea without deferring to the Government’s exercise of

prosecutorial discretion. Third, Mr. Papke argues the case should be assigned to a

different judge on remand. In his briefs before this court, Mr. Papke sought

reassignment as to any remand, but at oral argument, Mr. Papke modified his request

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to seek reassignment only if we reverse and remand for reconsideration of the First

The Government disagrees that the district court abused its discretion by

rejecting the First Plea, pointing to the district court’s explanations for rejecting that

plea at the sentencing hearing and in its written order. But the Government concedes

the district court abused its discretion by rejecting the Second Plea without affording

any deference to the Government’s prosecutorial discretion. Unlike Mr. Papke,

however, the Government argues the case should not be reassigned on remand.1

1 The Government does not argue that Mr. Papke’s arguments are precluded by the Third Plea. Ordinarily, “a voluntary and unconditional guilty plea waives all non- jurisdictional defenses” that a defendant might raise on appeal. United States v. Barnes, 141 F.4th 1156, 1161 (10th Cir. 2025). Even so, the government may “waive or forfeit the effect of such a [guilty] plea.” United States v. De Vaughn, 694 F.3d 1141, 1158 (10th Cir. 2012); see also United States v. Rickett, 535 F. App’x 668, 671 (10th Cir. 2013) (reviewing an argument otherwise barred by the defendant’s unconditional guilty plea where the government “voluntarily and explicitly waived its right to enforce any preclusive effects of [that] guilty plea”). Here, Mr. Papke pleaded guilty under the terms of the Third Plea, which did not condition his guilty plea upon his ability to appeal the district court’s denial of the first two plea agreements. See Barnes, 141 F.4th at 1162 (explaining that a defendant can preserve his or her appellate rights by entering a conditional guilty plea). Mr. Papke’s arguments on appeal were thus arguably waived by this unconditional guilty plea, notwithstanding that the Third Plea did not contain an explicit waiver of his appellate rights. See De Vaughn, 694 F.3d at 1155 n.10 (noting that an unconditional guilty plea precludes non-jurisdictional arguments about a defendant’s innocence even if the plea agreement does not contain an explicit appellate waiver). But the Government has not argued that Mr. Papke’s unconditional guilty plea precludes him from appealing the district court’s rejection of the first two plea agreements. It thus has waived “the effect of” that guilty plea, id. at 1158, and we may properly address whether the district court abused its discretion by rejecting the First and Second Pleas. 19 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 20

As we explain below, the district court did not abuse its discretion by rejecting

the First Plea: the court adequately explained why it believed that plea insufficiently

punished Mr. Papke for his conduct. But the district court mischaracterized the

Second Plea as a hybrid bargain. It was a pure charge bargain premised solely on the

dismissal of charges, with no attempt to curtail the district court’s sentencing

discretion for the counts to which Mr. Papke pleaded guilty. Accordingly, the district

court abused its discretion by failing to afford due deference to the executive

branch’s decision to drop certain charges and enter into the Second Plea. Finally,

although the record raises concerns about remanding to the same district judge, we

ultimately agree with Mr. Papke’s concession at oral argument that reassignment is

necessary only if we reverse the rejection of the First Plea. Properly characterizing

the Second Plea as a charge bargain should compel the district court to show

appropriate deference to the Government’s prosecutorial discretion. Because we

remand solely with respect to the Second Plea, we do not reassign the case.

A. The First Plea Agreement2

Mr. Papke concedes the First Plea was a hybrid bargain because it “obligated

the Government to dismiss Counts 1 and 2 (in the nature of a charge bargain), but it

also contained an agreed sentencing range under Rule 11(c)(1)(C) (in the nature of a

2 Although we below conclude that the district court abused its discretion by rejecting the Second Plea, we first consider whether the court properly rejected the First Plea because it was more advantageous to Mr. Papke than the Second Plea, and had it been accepted, no subsequent pleas would have been negotiated. See Fed. R. Crim. P. 11(h) (allowing appellate courts to reverse when a district court erroneously rejects a plea agreement if that rejection “affect[ed] substantial rights”). 20 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 21

sentencing bargain).” Appellant’s Br. at 46. Nonetheless, Mr. Papke argues the

district court abused its substantial discretion to reject or accept that hybrid bargain

by exhibiting “significant, and explicit, prejudice against any plea agreement that

limits [its] sentencing discretion.” Id. Mr. Papke also asserts that the district court did

not “identify on the record any sufficient reason” for rejecting the First Plea where

the Government had legitimate reasons to enter the First Plea and the fifteen-year

sentence authorized by the plea was within the Guidelines range. Id. at 47–49. Last,

Mr. Papke argues the court exhibited bias towards the First Plea by stating it could

not “live with” that agreement—he urges that whether the court could “live with” a

particular sentence is not a statutory sentencing factor the court should consider.3 Id.

at 47.

The Government disagrees. Although the district court “expressed frustration

at continually having its sentencing discretion limited by what it saw as an overuse of

[Rule] 11(c)(1)(C) agreements,” the Government argues the court explained that this

particular “stipulated sentence was insufficient considering the nature and duration of

[Mr.] Papke’s abuse of L.P.” Appellee’s Br. at 16–17. The Government argues it is

immaterial whether the stipulated sentence under the First Plea fell within the

3 The district court did not abuse its discretion by stating it would not impose a sentence it could not “live with.” ROA Vol. I at 75, 87, 89. In fashioning a sentence, district courts are tasked with imposing “a sentence sufficient, but not greater than necessary, to comply with” the statutory goals of punishment. 18 U.S.C. § 3553(a). The district court’s statement, while colloquial, comports with its statutory obligation to impose a sufficient sentence. 21 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 22

Guidelines range because the district court “reasonably concluded that the

[G]uidelines range was insufficient.” Id. at 18.

As discussed, district courts “enjoy considerable discretion in their

consideration of sentence bargains” and hybrid bargains. Vanderwerff, 788 F.3d

at 1271; see also Robertson, 45 F.3d at 1437–39. In fact, we have held that a district

court retains discretion to reject a hybrid bargain merely “to preserve” its “discretion

to sentence within the applicable range.” Robertson, 45 F.3d at 1439. Sentence

bargains “in which the government guarantees a particular sentence to a defendant,”

in particular, “directly and unequivocally infringe on the sentencing discretion of

district courts.” Id. We have therefore held “[t]here can be little doubt that rejecting a

plea agreement due to the court’s refusal to permit the parties to bind its sentencing

discretion constitutes the exercise of sound judicial discretion.” Id. All the same, a

district court may abuse its discretion by rejecting a hybrid bargain based on a

misapprehension of law or for reasons irrelevant to the terms of the plea agreement,

such as “scheduling concerns.” Id. at 1439; see also id. at 1435–46 (holding that the

district court had wrongly rejected a plea agreement based on its misapplication of

local procedural rules).

District courts may also properly reject sentence or hybrid bargains because

they believe the stipulated sentence is insufficient. In United States v. Hurst, 94 F.4th

993 (10th Cir. 2024), the adult defendant pleaded guilty to sexual assault of a

thirteen-year-old girl. Id. at 997–98. The parties entered into a Rule 11(c)(1)(C) plea

agreement under which the government stipulated to a sentencing range of 63 to 78

22 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 23

months. Id. at 1002. The district court rejected the plea agreement because it believed

the stipulated sentence was insufficient in light of “the nature and circumstances of

this offense” and the defendant’s lengthy criminal history. Id. at 1004–05. In

affirming the district court’s rejection of the plea, this court noted that the defendant

had taken “advantage of the victim’s youth and inexperience . . . to sexually exploit

her.” Id. at 1006. We held that such coercive conduct, when coupled with the

defendant’s criminal history, justified the district court’s finding that the plea

agreement did not adequately punish the defendant or protect the public. Id.

at 1005–06.

Here, the district court stated in its written order that it rejected the First Plea

because the stipulated sentence was “insufficient for the offense conduct, factoring in

all relevant conduct and history.” ROA Vol. I at 185. The court specified that it was

concerned about the unobjected-to facts in the PSR showing that “Mr. Papke engaged

in a pattern of activity involving prohibited sexual conduct by sexually abusing [L.P.]

on numerous occasions over a six-year period starting when she was seven years

old.” Id. And when Mr. Papke’s counsel argued the court’s rejection of the First Plea

was unreasonable, the court stated that the First Plea would not sufficiently deter

Mr. Papke from committing further crimes, provide just punishment for the offense,

or protect “the public from further crimes by [Mr. Papke] given the length of time in

which he was comfortable abusing [L.P.].” Id. at 91. The district court’s reasons for

rejecting the First Plea were similar to those in Hurst—the court believed the

stipulated sentence was insufficient given the seriousness of the offense and the years

23 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 24

of abuse Mr. Papke inflicted on the child victim. As in Hurst, we conclude the district

court’s reasons for rejecting the First Plea were sufficient.

Mr. Papke also asserts that the district court abused its discretion by displaying

“a negative frame of mind toward the plea-bargaining process.” Appellant’s Br. at 41

(quoting Vanderwerff, 788 F.3d at 1276). Mr. Papke implies that, under Vanderwerff,

a district court commits reversible error by showing disaffection for the plea-

bargaining process. But Mr. Papke’s reliance on Vanderwerff is inapt because there

(1) the district court’s “negative frame of mind toward” plea bargaining was but one

of four factors indicating that the district court had abused its discretion, and (2) the

plea agreement the court rejected was a charge bargain, which district courts have

considerably less discretion to reject. See Vanderwerff, 788 F.3d at 1270–78.

To be sure, the district court here was resistant to accepting sentence bargains

because they limit its sentencing discretion. See ROA Vol. I at 87 (criticizing the

Government for not giving the court “some latitude” to fashion an appropriate

sentence); see also id. (asserting that the U.S. Attorney’s Office had wrongly “fallen

in love with [Rule] 11(c)(1)(C)” agreements). But the record does not show that the

district court rejected the First Plea because it generally disliked plea agreements.

Rather, the record shows that the district court exercised its “considerable discretion”

to reject the First Plea because it believed the agreement insufficiently punished

Mr. Papke for his longstanding abuse of L.P. Vanderwerff, 788 F.3d at 1271.

Accordingly, the district court did not abuse its discretion by rejecting the First Plea.

24 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 25

B. The Second Plea Agreement

With respect to the Second Plea, however, we agree with the parties that the

district court abused its discretion. First, the district court erroneously characterized

the Second Plea as a hybrid bargain when it was, in fact, a charge bargain. Second,

the district court failed to give due deference to the Government’s exercise of its

prosecutorial discretion.

Both Mr. Papke and the Government agree that the district court

mischaracterized the Second Plea as a hybrid bargain, rather than as a charge bargain.

And because of that mischaracterization, the parties argue the district court did not

show deference to the exercise of prosecutorial discretion implicit in a charge

bargain. Mr. Papke, in particular, points out that the Government “set forth valid

reasons” for entering the Second Plea, yet the district court “brushed these concerns

aside.” Appellant’s Br. at 36–37. He urges that the stipulated sentence of seventeen

years was “a substantial punishment” falling within the Guidelines range, id. at 37,

and “would have been reasonable” under the § 3553(a) factors, id. at 38. And he

asserts that the court’s rejection of the Second Plea stemmed from a “general hostility

to plea bargaining.” Id. at 41. Similarly, the Government argues that rather than

giving “adequate deference to prosecutorial discretion[] when it rejected the” Second

Plea, the court “gave none at all.” Appellee’s Br. at 25.

During the sentencing hearing, the parties both characterized the Second Plea

as a charge bargain—an agreement by the Government to dismiss one charge in

exchange for Mr. Papke’s guilty plea to others, with no agreement as to the sentence.

25 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 26

Although the district court did not challenge that characterization at the hearing, it

ruled in its subsequent order that the Second Plea was a hybrid bargain. The district

court reasoned that the Second Plea “limit[ed] the Court’s sentencing power by

dismissing the count with the greatest exposure and” leaving “two counts that, if run

consecutively at their statutory maximums, would total 204 months.” ROA Vol. I

at 184. According to the district court, this assessment was consistent with United

States v. Carrigan, 778 F.2d 1454 (10th Cir. 1985), which the court construed as

holding that any plea “‘cast in the form of a dismissal of a count’ [that] has the effect

of limiting the sentence available” is a hybrid bargain. Id. at 182 (quoting Carrigan,

778 F.2d at 1463). The court further held that, under Robertson, its “refusal to permit

the parties to bind its sentencing discretion constitute[d] the exercise of sound

judicial discretion.” Id. at 186 (quoting Robertson, 45 F.3d at 1439). In short, the

district court held the Second Plea was a hybrid bargain under Carrigan and then

exercised its ample discretion to reject such pleas under Robertson.

The district court erred in so doing. Below, we first examine our precedent and

explain why the Second Plea is not a hybrid bargain. After properly categorizing the

Second Plea as a charge bargain, we next address whether the district court abused its

limited discretion by rejecting it.

1. The Second Plea was a pure charge bargain.

The district court erroneously relied on Carrigan to characterize the Second

Plea as a hybrid bargain. In that case, a corporate defendant and one of the

corporation’s employees were indicted for submitting fraudulent claims to the United

26 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 27

States in the amount of $629,000. Carrigan, 778 F.2d at 1456–58. The parties entered

into a plea agreement under which the corporate defendant agreed to (1) settle a

related civil action brought by the United States for $900,000; (2) never hire the

employee defendant again; (3) provide its employees with training to ensure similar

fraud never occurred; and (4) plead guilty to the three charges against it, for which

the maximum sentence was a fine of $30,000. Id. at 1456–57 & n.3. In exchange, the

government agreed to move to dismiss all criminal charges against the employee

defendant. Id. at 1457. After considering the plea agreement and the government’s

separately filed motion to dismiss, the district court rejected both because it found the

plea agreement insufficiently punished the employee defendant by allowing him to

avoid any punishment for defrauding the United States. Id. at 1458.

On appeal, the government argued that “the district court in effect issued two

orders, one rejecting the proposed plea agreement under Rule 11(e)4 and one denying

the Rule 48(a) motion to dismiss an indictment” against the employee. Id. at 1460.

The government thus argued that even though it filed the motion to dismiss pursuant

to the plea agreement, the district court should have analyzed the motion to dismiss

under the standard in Federal Rule of Criminal Procedure 48(a), which allows courts

only limited discretion to deny a government motion to dismiss criminal charges. Id.

at 1462–63. We rejected this argument because “[t]he record clearly indicate[d] that

4 Although Carrigan references Federal Rule of Criminal Procedure 11(e) when discussing various types of plea bargains, the rule has since been reorganized and the different categories of plea bargains are now outlined in Rule 11(c). See Fed. R. Crim. P. Rule 11 advisory committee’s note to 2002 amendment. 27 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 28

[the corporate defendant’s] plea of guilty was contingent upon a number of factors,

one of which was the dismissal of charges against [the employee].” Id. at 1460–61.

The plea agreement thus was “part charge bargain and part sentence bargain”—that

is, it was a hybrid bargain—and the district court possessed “discretionary power to

reject [such] plea bargains.” Id. at 1462. We then held that the district court did not

abuse its discretion by rejecting the novel hybrid plea agreement that allowed the

employee defendant to escape all punishment after defrauding the United States of

more than $600,000. See id. at 1460–64.

As the district court here noted, in Carrigan we relied on an out-of-circuit

case, United States v. Bean, 564 F.2d 700 (5th Cir. 1977). In relevant part, we noted

Bean’s holding that because plea bargains premised on the dismissal of charges

impair a district court’s overall sentencing discretion, “the standard for review of

refusal of plea bargains should be closer to the standards for review of sentencing

than for review of a dismissal which does not involve a plea bargain under Rule

48(a).” Carrigan, 778 F.2d at 1463 (quoting Bean, 564 F.2d at 704). In Carrigan, we

followed Bean’s analysis and rejected the government’s argument that a motion to

dismiss filed under a hybrid bargain should be reviewed under the strictures of

Rule 48(a) rather than for abuse of discretion under Rule 11. Id. at 1464. Specifically,

we held that “the district court’s discretion [to reject a plea bargain] and our standard

of review are governed by Rule 11(e) and not by Rule 48(a).” Id. Importantly,

however, we did not hold in Carrigan that any plea bargain limiting a district court’s

sentencing discretion is a hybrid bargain; we merely decided that we review the

28 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 29

rejection of a plea agreement for abuse of discretion under Rule 11, not under

Rule 48(a).

Furthermore, Carrigan was not our last word on this matter. In Robertson, we

closely explored the differences between plea bargains and sentence bargains,

concluding that the bargain at issue there was a hybrid of the two. Robertson, 45 F.3d

at 1437–38. We explained that “charge bargains implicate executive discretion with

respect to charging decisions,” and that the doctrine of “separation of powers

mandates the judiciary remain independent of executive affairs and vice versa.” Id.

at 1437. Although we recognized that a charge bargain may limit a court’s sentencing

discretion by preventing it from sentencing based on the dismissed charges, we held

that the “court’s sentencing discretion is implicated only as an incidental

consequence of the prosecution’s exercise of executive discretion.” Id. at 1438. “In

fact, a court’s sentencing discretion is implicated in this situation in precisely the

same manner it is implicated by prosecutorial decisions to bring charges in the first

place, where prosecutorial discretion is nearly absolute.” Id. We noted that district

courts may “reject charge bargains in the sound exercise of judicial discretion”—but

in exercising this discretion, district courts should hesitate to “second-guess[]

prosecutorial choices” because in so doing they may easily abridge “the doctrine of

separation of powers.” Id.

In Vanderwerff, we reversed a district court’s rejection of a charge bargain,

like the Second Plea here. Vanderwerff, 788 F.3d at 1279. It was undisputed that the

plea agreement in Vanderwerff was a charge bargain, because it contained no

29 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 30

stipulations about the defendant’s sentence but instead “was predicated on the

dismissal of [two] charges . . . in exchange for a guilty plea to another charge.” Id.

at 1272. We held that the district court had committed a series of errors when

rejecting the charge bargain, including that it displayed a “negative frame of mind

toward the plea-bargaining process,” which informed “its decision to reject the

agreement at issue.” Id. at 1276. We noted that the district court’s animosity towards

plea agreements was “particularly troubling because [the] plea agreement involved a

charge bargain, where the zone of judicial discretion is ordinarily quite limited.” Id.

at 1277. We clarified that “charge bargaining is a province primarily for the exercise

of prosecutorial—not judicial—discretion” and held that the district court’s

animosity to plea bargaining “effectively crippled, and failed to accord proper

deference to, the government’s exercise of prosecutorial discretion in fashioning a

charge bargain.” Id. at 1277–78.

As illustrated by this precedential backdrop, the district court wrongly relied

on Carrigan to characterize the Second Plea as a hybrid bargain. Carrigan did not

hold that any plea agreement limiting the maximum sentence a district court can

impose should be characterized as a hybrid bargain. In fact, Carrigan did not analyze

charge bargains at all—it dealt with a novel hybrid bargain that was “part charge

bargain and part sentence bargain.” 778 F.2d at 1462. And after we concluded that

the plea agreement in Carrigan was a hybrid bargain, we focused entirely on the

government’s argument that the dismissal of charges under a hybrid bargain should

be reviewed piecemeal under Rule 48(a)’s deferential standard. Id. at 1464. Nowhere

30 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 31

in that decision did we purport to define the extent of a district court’s discretion to

reject a charge bargain. Subsequently, in Robertson—another hybrid bargain case—

we did consider how “[t]he different types of plea bargains implicate different types

of discretion and power.” Robertson, 45 F.3d at 1437. And we described as “dicta”

Carrigan’s discussion about how “charging decisions ‘restrict the district court’s

ability to impose what it considered an appropriate sentence.’” Id. at 1438 (quoting

Carrigan, 778 F.2d at 1464). Put simply, Carrigan did not announce a broad

principle that any plea bargain restricting a district court’s sentencing discretion

should be characterized as a hybrid bargain. Rather, Carrigan rejected a discrete

argument—that the dismissal of charges under a hybrid agreement is governed by

Rule 11, not Rule 48(a)—and its analysis cannot be divorced from that context.

Here, the district court misconstrued Carrigan by ruling that the Second Plea

was a hybrid bargain because it limited its sentencing discretion by dismissing “the

count with the greatest exposure.” ROA Vol. I at 184. The ruling ignores our only

precedent analyzing a charge bargain, Vanderwerff, in which we held that a plea

agreement “predicated on the dismissal of [two] charges . . . in exchange for a guilty

plea to another charge” was “properly characterized as a charge bargain.”

Vanderwerff, 788 F.3d at 1272. The Second Plea was predicated on the dismissal of

Count Three in exchange for Mr. Papke’s guilty plea to Counts One and Two and it

contained no agreement with respect to the sentence to be imposed. As we stated in

Vanderwerff, Robertson, and Carrigan, a plea agreement that is “predicated on the

dismissal of other charges” in exchange for a guilty plea to a remaining charge or

31 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 32

charges is a charge bargain. Id.; Carrigan, 778 F.2d at 1462; Robertson, 45 F.3d

at 1437 (stating a charge bargain is “predicated on the dismissal of some counts” in

exchange for a guilty plea to other counts).

Accordingly, the district court erred by characterizing the Second Plea as a

hybrid bargain rather than a charge bargain.

2. The district court abused its discretion by rejecting the Second Plea without affording due deference to the Government’s exercise of prosecutorial discretion.

Although the Second Plea is a charge bargain, the district court could have

rejected the agreement “in the sound exercise of judicial discretion.” Robertson, 45

F.3d at 1438. But as discussed, the “zone of judicial discretion” to reject a charge

bargain is “quite limited.” Vanderwerff, 788 F.3d at 1277. District courts must

display deference when analyzing a charge bargain, because charge bargains

represent an exercise of prosecutorial discretion and “separation of powers mandates

the judiciary remain independent of executive affairs.” Robertson, 45 F.3d at 1437.

Indeed, “charge bargains raise the possibility of improper judicial influence over

charging.” Miller, 722 F.2d at 564. Thus, although Rule 11 authorizes district courts

to “reject charge bargains in the sound exercise of judicial discretion,” a district court

should display “hesitancy before second-guessing prosecutorial choices.”5 Robertson,

45 F.3d at 1438.

5 The deference to prosecutorial discretion required under Robertson and Vanderwerff tracks with that afforded in other circuits. See, e.g., In re United States, 32 F.4th 584, 594 (6th Cir. 2022) (“A court considering a charge bargain must,

32 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 33

Here, the district court showed little “hesitancy before second-guessing

prosecutorial choices” made by the Government. Id. In its written order, the district

court acknowledged that the Government entered the Second Plea because (1) the

Government wanted a quick disposition of the case for L.P.’s sake; (2) the

Government did not want to retraumatize L.P. by subjecting her to cross-

examination; and (3) “the Government had concerns about proving Count Three

under a recent Tenth Circuit opinion.” ROA Vol. I at 183. But the district court

dismissed these concerns with little analysis. The court repeated that it believed L.P.

was “very capable of testifying at trial,” and it reiterated that it was “not concerned at

all” about whether the Government could prove Count Three beyond a reasonable

doubt. See id. at 182–83 & n.4. At the hearing for the Second Plea, the district court

told the parties it was “questioning what’s going on here, to say the least.” Id. at 138.

And in rejecting the Second Plea, the court indicated it was “disappoint[ed]” that the

parties had entered another plea agreement after the court rejected the First Plea

therefore, exercise its discretion with due regard to prosecutorial prerogatives.”); United States v. Walker, 922 F.3d 239, 250 (4th Cir. 2019) (requiring that district courts evaluating plea bargains “must accord due respect to the prosecutorial prerogatives involved in charging decisions, thus ensuring that the separation of executive and judicial powers is not infringed”), rev’d on other grounds, 140 S. Ct. 474 (2019); United States v. Fokker Servs. B.V., 818 F.3d 733, 745 (D.C. Cir. 2016) (“[A] district court lacks authority to reject a proposed agreement based on mere disagreement with a prosecutor's underlying charging decisions.”); In re Vasquez- Garcia, 443 F.3d 692, 698 (9th Cir. 2006) (holding that a district court’s discretion over sentencing is “cabined [] by the prosecutor’s decision regarding which charges to pursue”); United States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983) (holding that “[a]lthough courts are free to accept or reject individual charge bargains,” they also “should be wary of second-guessing prosecutorial choices”). 33 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 34

because the court “could [not] have been anymore clear about where we were headed

in this case.” Id. at 147. The district court never responded to the Government’s

specific concern—which the GAL also expressed—that L.P. would struggle to endure

the rigors of cross-examination because of her ongoing mental health struggles.

In sum, because the district court misidentified the Second Plea as a hybrid

bargain, it did not display the appropriate hesitancy before second-guessing the

Government’s decision to agree to it. Instead, the district court rejected the

Government’s exercise of prosecutorial discretion with scant analysis while

criticizing the Government for not giving the court “some latitude” in sentencing. Id.

at 183. As we explained in Vanderwerff, “charge bargaining is a province primarily

for the exercise of prosecutorial—not judicial—discretion,” and here the district

court’s failure to give any deference to the Government’s reasons for entering the

Second Plea is incompatible with our constitutional system of separation of powers.

788 F.3d at 1277. The district court abused its discretion by failing to “accord proper

deference to[] the government’s exercise of prosecutorial discretion in fashioning a

charge bargain.” Id. at 1278. We therefore reverse the rejection of the Second Plea.

C. Reassignment on Remand

Because we hold that the district court abused its discretion by rejecting the

Second Plea, we must decide whether to assign the case to a different judge on

remand. In his briefs on appeal, Mr. Papke asserts that the district court displayed

substantial bias “against [any] plea agreements that limit the court’s sentencing

discretion.” Reply Br. at 15. As evidence of the district court’s disapproval of plea

34 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 35

bargaining, Mr. Papke points to the Chambers Rule the district court adopted

immediately after it accepted the Third Plea, which stated that the court would no

longer consider any future sentence bargains made under Rule 11(c)(1)(C). See

Appellant’s Br. at 49–50; see also Appellant’s Br. Attach. 2 at 5 (Chambers Rule).

Mr. Papke also argues that, in light of the court’s ardent opposition to the First and

Second Pleas, it is likely the court would “have substantial difficulty putting [its]

prior statements out of [] mind.” Appellant’s Br. at 50. And Mr. Papke notes that, if

the court were to reject the Second Plea again, it would sow doubt as to “whether the

court had given the issues a thorough, new review.” Reply Br. at 16. At the same

time, Mr. Papke admits the court “showed [no] personal bias against” him or his

counsel. Reply Br. at 14.

The Government argues the case should not be reassigned. It asserts the record

does not show that the court harbors any bias against Mr. Papke; rather, the court

legally erred by characterizing the Second Plea “as a hybrid bargain and factually

erred by failing to afford proper deference to prosecutorial discretion.” Appellee’s

Br. at 29. The Government further contends that Mr. Papke’s reliance on the district

court’s rule categorically rejecting all Rule 11(c)(1)(C) agreements is “outside both

the district court and the appellate record.” Id. at 30. And even if this court considers

the Chambers Rule, the Government urges that Robertson held that “it is not an abuse

of discretion for a district court to categorically refuse to accept Rule 11(c)(1)(C)

plea agreements simply because it does not want to have its discretion limited.” Id.

at 31 (citing Robertson, 45 F.3d at 1439). Last, the Government argues that

35 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 36

“reassignment would entail waste and duplication in this fact-intensive, drawn-out

case” by “requir[ing] a new district judge to become familiar with the entirety of the

case history before it could properly evaluate the” Second Plea. Id. at 30.

Because reassignment to a different judge is an extraordinary request, we

typically “will remand with instructions for assignment of a different judge only

when there is proof of personal bias or under extreme circumstances.” Mitchell v.

Maynard, 80 F.3d 1433, 1448 (10th Cir. 1996). Even so, reassignment may be

warranted with no “actual bias or prejudice” if reassignment would ameliorate the

“appearance of impropriety.” United States v. Slinkard, 61 F.4th 1290, 1296 (10th

Cir. 2023) (quotation marks omitted). We consider three factors when assessing a

request for reassignment:

(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 1296–97 (quoting Mitchell, 80 F.3d at 1450). We now address each of these

factors in turn.

First, both parties agree that the district court did not display bias or prejudice

towards Mr. Papke and his counsel. But the record does indicate the court was

disinclined to accept any plea bargain that limited its sentencing discretion—in

particular, the court criticized the Government for failing to give it “some latitude” in

36 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 37

sentencing Mr. Papke and more broadly criticized the U.S. Attorney’s Office for

“fall[ing] in love with [Rule] 11(c)(1)(C)” plea agreements. ROA Vol. I at 87.

The district court’s predisposition to reject any plea agreement limiting its

sentencing discretion is particularly evident in the Chambers Rule the court created

after it adopted the Third Plea.6 The rule categorically stated that the district court

would “no longer accept plea agreements made” under Rule 11(c)(1)(C). Appellant’s

Br. Attach. 2 at 5. This categorical proscription of binding sentence bargains directly

contradicts Rule 11, which expressly authorizes such plea agreements. The district

court has no more authority to override the Federal Rules of Criminal Procedure than

to reject any other any source of law. See Robertson, 45 F.3d at 1436 (holding that

the “adoption of [a] district court’s internal rule [was] proscribed by” Federal Rule of

Criminal Procedure 57); see also 28 U.S.C. § 2071(a) (forbidding district courts from

creating rules that are inconsistent with the federal “rules of practice and

procedure”). Moreover, the very “existence of discretion requires its exercise.”

Miller, 722 F.2d at 565. A categorical refusal to consider any Rule 11(c)(1)(C) plea

bargain without regard for the circumstances in a particular case constitutes an

6 To the extent the Government contends we cannot consider the propriety of this Chambers Rule because it is outside the record, we take judicial notice of the publicly available judicial document attached to Mr. Papke’s brief, since nothing indicates it is inaccurate or unreliable. See Fed. R. Evid. 201(b) (authorizing courts to take judicial notice of “a fact that is not subject to reasonable dispute”). That said, at oral argument Mr. Papke’s counsel notified us that the district court has since amended its Chambers Rules to remove this categorical rejection of Rule 11(c)(1)(C) agreements. Oral Argument at 31:15. 37 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 38

arbitrary and unreasonable exercise of discretion, as other circuits have recognized.7

See, e.g., In re United States, 32 F.4th 584, 594 (6th Cir. 2022) (stating that district

courts may not reject plea agreements “pursuant to a categorical policy”); United

States v. Walker, 922 F.3d 239, 249 (4th Cir. 2019) (noting that a district court’s

“failure to consider [a] specific agreement would constitute an abdication—and hence

an abuse—of discretion”), rev’d on other grounds, 140 S. Ct. 474 (2019); In re

Morgan, 506 F.3d 705, 712 (9th Cir. 2007) (holding “that district courts must

consider individually every sentence bargain presented to them”). Similarly, this

circuit has long recognized that a district court abuses its discretion by refusing to

consider “the facts upon which the exercise of [the court’s] discretionary judgment is

based.” Clyma v. Sunoco, Inc., 594 F.3d 777, 783 (10th Cir. 2010) (quotation marks

omitted).

Mr. Papke is correct that the district court expressed considerable reluctance to

approve any plea agreement that limited its discretion to sentence him for the charges

named in the initial indictment. The court also showed “a strong personal belief

regarding what punishment is appropriate,” Slinkard, 61 F.4th at 1297, because it

7 United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995), does not hold otherwise. There, we affirmed a district court’s decision not to accept any Rule 11(c)(1)(C) plea agreements in the case before it, in light of the court’s “long involvement in the case.” Id. at 1436–37, 1439. We explained that “[t][here can be little doubt that rejecting a plea agreement due to the court’s refusal to permit the parties to bind its sentencing discretion constitutes the exercise of sound judicial discretion.” Id. at 1439 (emphasis added). Robertson thus did not hold that district courts can adopt a categorical rule refusing to consider any Rule 11(c)(1)(C) agreement in any case—it merely held that a district court has broad discretion to reject a sentence plea in a particular case. 38 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 39

stated multiple times that it could not “live with” the sentences stipulated in the First

and Second Pleas. Bearing all this in mind, it is possible that the district court may

have “substantial difficulty” relinquishing its previous views and giving the Second

Plea a fresh look on remand. Id. at 1296 (quotation marks omitted).

Turning to the second factor, we consider whether reassignment is necessary to

promote the appearance of justice. See id. at 1297. Although the district court

rejected both the First and the Second Pleas, it did eventually accept the Third Plea

rather than forcing the parties to trial. It is also true that the district court’s rejection

of the Second Plea stemmed from an error of law, in that it mischaracterized the

Second Plea as a hybrid bargain rather than a charge bargain. Nothing in the record

reveals that the district court would be unwilling to analyze the Second Plea as a

charge bargain on remand. On the other hand, the district court’s unwillingness to

defer to the Government’s discretionary decision to enter the Second Plea was

consistent with its hostility toward the Government’s use of sentence agreements

generally. See, e.g., ROA Vol. I at 87 (scolding the Government for “fall[ing] in love

with the 11(c)(1)(C)”). That frustration and hostility is also reflected in the tone of

the district court’s written order rejecting the First and Second Pleas. See id. at 182

(stating “it seems the parties weren’t listening” to the court’s explanations for

rejecting the First and Second Pleas); id. at 184 (dismissing the parties’ arguments

that the Second Plea was a charge bargain as “oversimpli[stic]”); id. at 186 n.6

(accusing the parties of mischaracterizing Robertson). Even so, we cannot say the

district court would be “unwilling to consider [our instructions] on remand.”

39 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 40

Slinkard, 61 F.4th at 1297. This is particularly true where our instructions on remand

dictate that the Second Plea is a charge bargain and the district court’s discretion to

reject it is significantly curtailed.

With respect to the third factor, the Government overstates the “waste and

duplication” that would ensue if the case were reassigned. See Appellee’s Br. at 30

(arguing reassignment would “significantly extend[] the already protracted” case by

requiring “a new district judge to become familiar with the entirety of the case

history”). This is a discrete sentencing issue. If the case were reassigned, the new

judge would primarily need to review the terms of the Second Plea and the PSR and

decide whether to accept the plea agreement. This should not significantly extend the

life of this case or “impose a substantial additional burden on the judiciary.” See

Slinkard, 61 F.4th at 1297 (holding that remanding to another judge for resentencing

“will not impose a substantial additional burden on the judiciary”).

In sum, the record reflects that the district court may struggle to keep an open

mind on remand, and we do not believe that reassignment would cause undue “waste

and duplication” of effort. Slinkard, 61 F.4th at 1297 (quotation marks omitted). At

the same time, we are not convinced that reassignment is necessary to avoid the

appearance of impropriety, and we are confident the proper characterization of the

Second Plea as a charge bargain will guide the district court’s analysis.

40 Appellate Case: 24-5094 Document: 39-1 Date Filed: 08/12/2025 Page: 41

Ultimately, we resolve this issue against reassignment, consistent with

Mr. Papke’s post-briefing concession.8 During oral argument, Mr. Papke’s counsel

retreated from his arguments in briefing by conceding that if we remand only on the

Second Plea, reassignment is unnecessary. Oral Argument at 15:15–15:59. Counsel

reasoned that the proper characterization of the Second Plea as a charge plea would

cabin the district court’s discretion such that reassignment would be unnecessary. We

agree that correction of the legal error with respect to the nature of the Second Plea

and the scope of discretion alleviates our concerns about the district court’s ability to

view the Second Plea with an open mind on remand. Accordingly, we do not assign

the case to a different judge on remand.

V. CONCLUSION

For the reasons above, we REMAND the case to the district court with

instructions to VACATE Mr. Papke’s convictions and sentence and for the district

court to reconsider the Second Plea in accordance with this opinion.

8 Although Mr. Papke concedes reassignment is not required if we remand only with respect to the Second Plea, we analyze the Mitchell factors to perform our independent duty to assure fairness and the appearance of justice. Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir. 1996). 41