United States v. Carlos Dominguez Benitez AKA Carlos Dominguez

TALLMAN, Circuit Judge,

dissenting:

I respectfully disagree with the Court’s analysis of the Rule 11(e)(2) issue now that the Supreme Court has decided United States v. Vonn, 535 U.S. 55 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 (2002). Vonn holds that when a defendant fails to object to a possible Rule 11 violation, the reviewing court must apply the plain error standard of review. Furthermore, Vonn instructs us to examine the record as a whole when conducting this review. Considering the cumulative effect of Benitez’s signed plea agreement and the questions posed to Benitez during the plea colloquy, no plain error attends his conviction and sentence. We should affirm.

Vonn overrules prior Ninth Circuit cases like United States v. Graibe, 946 F.2d 1428 (9th Cir.1991), which required us to find a Rule 11 violation if the transcript of the plea colloquy, when viewed by itself, did not provide proof that the defendant understood his fundamental rights that were waived by the plea agreement. Graibe, 946 F.2d at 1434 . Graibe and its progeny, to which the Court’s opinion tenaciously clings, held that a district court’s failure to inform a defendant that he could *1228 not withdraw his guilty plea, even if the court later rejected the sentencing recommendation, was not harmless error where nothing in the plea proceeding suggested that the defendant understood the binding nature of his plea. Id. at 1434-35 . Graibe prohibited our consideration of the contents of the written plea agreement when evaluating compliance with Rule 11. Vonn rejects this narrow and overly technical approach by placing the burden on the defendant to establish plain error, and by making it clear that our review is not limited to only the transcript of the plea proceedings. 122 S.Ct. at 1054-55 .

In light of Vonn , I see no reason why we must cast a blind eye to the contents of the written plea agreement when determining whether Benitez had actual knowledge of the binding nature of his plea, especially where the district judge orally reviewed the bulk of the plea agreement with Beni-tez during the plea colloquy. Benitez admitted to Judge Stotler that the agreement had been translated into Spanish and explained to him by his lawyer the day before he appeared in court to formally enter his plea. This was no hastily prepared document thrust upon the defendant moments before his court appearance.

After studying the transcript of the change-of-plea proceeding in its entirety, including the written plea agreement specifically reviewed by Judge Stotler with Benitez in the courtroom, I am satisfied that the district court’s thorough and repeated warnings (coupled with Benitez’s written acknowledgment after careful consultation with his lawyer) regarding his potential ten-year sentence provided adequate notice of the binding nature of his plea. The majority elevates form over substance by looking only to see if the “magic words” were spoken in the colloquy, while the Supreme Court tells us to apply the plain error rule to the record as a whole. This embodies a more reasonable approach in evaluating the cumulative effect of all of the warnings — written and oral — given to Benitez in connection with his plea. Together they conclusively show that Benitez understood The binding nature of .his guilty plea.

In this case the district court made it abundantly clear to Benitez that he would receive a mandatory minimum sentence of ten years if he did not qualify for the safety valve exception. Benitez assured the court he understood that decision was the judge’s alone. His written plea agreement acknowledges he was bound by the plea even if the probation officer’s investigation later revealed that he could not qualify for a safety valve reduction because of his criminal past. His statements in open court only have meaning if Benitez is understood to admit he knew he was bound by his plea. On the complete record, considered as a whole as Vonn dictates, I find no plain error and would affirm the sentence imposed.

Vonn holds “that a silent defendant [like Benitez] has the burden to satisfy the plain-error rule and that a reviewing court may consult the whole record when considering the effect of any error on substantial rights.” 122 S.Ct. at 1046 . Vonn rejected the Ninth Circuit’s overzealous standard which Graibe, United States v. Kennell, 15 F.3d 134 (9th Cir.1994), and United States v. Odedo, 154 F.3d 937 (9th Cir.1998), established. Vonn, 122 S.Ct. at 1047-48 . The Supreme Court made clear that a defendant who remains silent shoulders “the burden to show that his ‘substantial rights’ were affected.” Id. at 1048. Our Court once again falls into the same trap for which the Supreme Court criticized us in Vonn; the majority’s approach is “more zealous than the policy behind [Rule 11] demands.” Id. at 1054.

The majority’s failure to follow binding precedent is not limited to just Supreme *1229 Court case law. United States v. Morales-Robles, 309 F.3d 609 (9th Cir.2002), also controls the case before us. At issue in Morales-Robles was whether the district court violated Morales-Robles’s substantial rights by failing to verbally advise him during his plea colloquy that he had a right to persist in his plea of not guilty. Id. at 610 . We held that because “the district court informed [Morales-Robles] of the rights associated with his right to go to trial,” such as his rights to a speedy trial, to call witnesses, and against self-incrimination, “the district court’s failure to specifically indicate that he had the right to persist in his plea of not guilty is not reversible under the plain error standard because it did not affect his substantial rights.” Id. (emphasis added). In other words, the court’s verbal statements on other topics necessarily implied the substance of the statement the district court failed to give. Similarly, while the district court here did not specifically indicate that Benitez could not withdraw his guilty plea, as shown below, it did make statements that necessarily imply the binding nature of his plea. The majority’s holding today cannot be squared with Morales-Robles .

The majority assumes that Benitez’s plea agreement was entered in haste just prior to the district judge assuming the bench to take his plea. The record shows otherwise. The ten-page plea agreement was the culmination of prior negotiations that led to the signing of an earlier version of the plea agreement on October 12, 1999. That document contained interlineations agreed between the parties, and initialed by Benitez, which were subsequently filed with the court on October 13 as an amended plea agreement. The defendant certified on the signature page:

This agreement has been read to me in Spanish, the language I understand best, and I have carefully discussed every part of it with my attorney. I understand the terms of this agreement, and I voluntarily agree to those terms. My attorney has advised me of my rights, of possible defenses, of the Sentencing Guideline provisions, and of the consequences of entering into this agreement.

Unless the sentencing judge found that Benitez was eligible for a statutory safety valve reduction, paragraph 4 of the plea agreement states that Benitez faced a mandatory minimum sentence of ten years:

Absent a determination by the Court that defendant’s case satisfies the criteria set forth in 18 U.S.C. § 3553 (f) and United States Sentencing Guideline § 5C1.2, the statutory mandatory minimum sentence that the Court must impose for a violation of Title 21, United States Code, Section 846 , is ten years imprisonment followed by a five-year period of supervised release.

Additionally, paragraph 12 of the plea agreement reads:

The stipulations in this agreement do not bind either the United States Probation Office or the Court. The Court will determine the facts and calculations relevant to sentencing.

Finally, paragraph 19 states:

The Court is not a party to this agreement and need not accept any of the USAO’s sentencing recommendations or the parties’ stipulations. Even if the Court ignores any sentencing recommendations, finds facts or reaches conclusions different from any stipulation, and/or imposes any sentence up to the maximum established by statute, defendant cannot, for that reason, withdraw defendant’s guilty plea, and defendant will remain bound to fulfill all defendant’s obligations under this agreement. No one — not the prosecutor, defendant’s attorney, or the Court — can make a *1230 binding prediction or promise regarding the sentence defendant will receive, except that it will be within the statutory maximum.

(Emphasis added).

At the plea colloquy, the district judge reviewed the provisions of the written plea agreement, including discussing the substance of its provisions set forth above. She then inquired of the defendant:

THE COURT: You are reminded that absent a determination by the Court that your case satisfies the criteria, which apparently would be a safety valve exception, there is a mandatory minimum sentence that the Court must give you, which is ten years of imprisonment, followed by a five-year period of supervised release.

Do you understand the mandatory nature of the sentence the Court must impose as stated in paragraph 4?

THE DEFENDANT: Yes.

THE COURT: And at this point, has anyone promised you that you will in fact qualify for the so-called safety valve exception?

THE DEFENDANT: No.

THE COURT: So you realize the Court may give you a ten-year sentence or more, as provided for by law?

THE DEFENDANT: Yes.

THE COURT: Knowing that, do you still want to go forward with your guilty plea?

THE DEFENDANT: Yes.

THE COURT: You must realize that the statutory maximum sentence provided for by law is actually as much as life imprisonment, a fine of up to $4 million, and a mandatory special assessment which is required, and that is in the sum of $100.

Do you understand the maximum penalties provided for by law?

THE DEFENDANT: Yes.

THE COURT: And knowing those consequences, do you still wish to go to forward with your guilty plea?

THE DEFENDANT: Yes.

THE COURT: Mr. Wilke [defense counsel], is there some reason to believe that this defendant will in fact qualify for the safety valve calculation?

MR. WILKE: Yes, your Honor, there is.

THE COURT: But you’ve told him that is still subject to the Court’s determination?

MR. WILKE: Yes, your Honor.

THE COURT: All right.

(Emphasis added).

The record shows that Judge Stotler spent substantial time insuring that Beni-tez entered into the plea knowingly and voluntarily, which satisfies the purpose of Rule 11. She specifically reminded him that any predictions as to whether or not he might be eligible for adjustments, including a safety valve reduction, were predictions regarding Benitez’s sentence that were not binding on the probation officer or the sentencing court when it came time to fix'a proper sentence. She explained to him, “[T]hese stipulations are not binding on the Court. Do you understand that?” Benitez replied, “I do.” Finally, Judge Stotler confirmed that defense counsel, Mr. Wilke, had discussed the Sentencing Guidelines with Benitez “very carefully.”

The Court’s conclusion that plain error invalidates this conviction ignores the role of conscientious defense counsel in negotiating pleas, and disregards the extensive supporting record before us by myopically focusing on a few missing words actually contained in writing but omitted orally in court. This approach places semantics over substance, and defies the Supreme Court. Because the Court’s opinion disre *1231 gards the analysis we now must follow under Vonn as well as our holding in Morales-Robles , I respectfully dissent.