United States v. Rodriguez-Adorno ( 2011 )

United States Court of Appeals
For the First Circuit
No. 10-2323
UNITED STATES OF AMERICA,
Appellee,
v.
SAMUEL ORTIZ-GARCÍA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.
Rafael F. Castro Lang, by Appointment of the Court, for
appellant.
Vernon B. Miles, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-
Sosa, Assistant United States Attorney, and Thomas F. Klumper,
Assistant United States Attorney, were on brief for appellee.
December 7, 2011
STAHL, Circuit Judge. Defendant-appellant Samuel Ortiz-
García (Ortiz) executed a plea agreement and entered a guilty plea
without ever having been informed that the maximum penalty for the
crime to which he was pleading guilty was life imprisonment. Ortiz
ultimately received a sentence of 360 months, though his plea
agreement recommended 120 months. Ortiz argues that the waiver of
appeal provision in his plea agreement is unenforceable, that the
district court violated Rule 11 by failing to inform him of the
maximum penalty at his change-of-plea hearing, and that the court
violated Rule 32 by failing to inquire at the sentencing hearing
whether Ortiz had reviewed the pre-sentence investigation report
with his attorney. Because we find that the waiver is
unenforceable and that the Rule 11 violation constituted plain
error, we vacate and remand for a new change-of-plea hearing.
I. Facts & Background
We recite the facts only as they are relevant to this
appeal, drawing from the plea colloquy, the unchallenged portions
of the pre-sentence investigation report (PSR), and the sentencing
hearing transcript. United States v. Mercedes Mercedes, 428 F.3d
355, 357 (1st Cir. 2005). On May 12, 2007, Ortiz and two other
individuals attempted to steal the car of Gilberto Santiago-
Quiñones (Santiago). Santiago and his passenger confronted the
men, and an altercation ensued, in which Ortiz does not appear to
have been involved. After the fight was over, Santiago and his
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passenger got back into the car to try to leave, but Ortiz's co-
defendant, Agustín Rodríguez-Adorno (Rodríguez), blocked their way.
An unidentified individual then said, "He's tough. Shoot him."
Ortiz approached the driver's side of the car and fired multiple
shots into the car, killing Santiago.
A grand jury returned a four-count indictment, charging
Ortiz, Rodríguez, and another individual with: (1) conspiring to
commit a carjacking with intent to cause death or serious bodily
harm, in violation of 18 U.S.C. §§ 371, 2119 (Count One);
(2) aiding and abetting in a carjacking that resulted in a death,
in violation of 18 U.S.C. § 2119(3) (Count Two); (3) aiding and
abetting in the use, carriage, and discharge of a firearm in
furtherance of, during, and in relation to the commission of a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)
(Count Three); and (4) aiding and abetting one another in causing
the death of another person through the use of a firearm, in
violation of 18 U.S.C. § 924(j) (Count Four).1
On June 9, 2010, Ortiz entered into a plea agreement with
the government, pursuant to Federal Rule of Criminal Procedure
11(c)(1)(A) and (B). Under the terms of that agreement, Ortiz
agreed to plead guilty to Count Three of the indictment:
1
The indictment charges, and the government's brief lists,
violations of "18 U.S.C. § 2119(3) and 2," "18 U.S.C.
§ 924(c)(1)(A)(iii) and 2," and 18 U.S.C. § 924(j) and 2." Because
it is unclear what statutory provision "and 2" refers to in each
instance, we have omitted that language here.
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discharging a deadly weapon during a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(iii). In exchange, the
government recommended a sentence of 120 months. As part of the
plea agreement, Ortiz accepted the district court's "jurisdiction
and authority to impose any sentence within the statutory maximum
set forth for the offense." If the district court chose to impose
a sentence "up to the maximum established by statute," Ortiz could
not "for that reason alone, withdraw a guilty plea," and would
remain bound to fulfill all of the obligations of the plea
agreement. Nowhere in the agreement, however, did the government
include the maximum penalty under 18 U.S.C. § 924(c)(1)(A)(iii),
which is life imprisonment.2 The "statutory penalties" section of
the agreement simply stated that the crime was punishable "by
imprisonment of not less than ten (10) years," a fine not to exceed
$250,000.00, or both, and a term of supervised release of no more
than three years.
The agreement also contained a waiver of appeal section,
which read as follows: "The defendant hereby agrees that if this
Honorable Court accepts this agreement and sentences him according
to its terms and conditions, defendant waives and surrenders his
right to appeal the judgment and sentence in this case."
2
As we explain in more detail below, a complicating factor in
this case is that the relevant statutory text does not include a
maximum penalty; the statute only specifies a mandatory minimum of
"not less than 10 years." 18 U.S.C. § 924(c)(1)(A)(iii). The
maximum penalty of life imprisonment is thus derived from case law.
-4-
At Ortiz's change-of-plea hearing on June 10, 2010, the
district court informed Ortiz that the minimum statutory penalty
for the offense charged in Count Three was "imprisonment of not
less than ten years if the firearm is discharged," but the court
did not mention the maximum penalty. Ortiz did not object to this
omission at the hearing. The district court did confirm Ortiz's
understanding that the court could impose a sentence more or less
severe than the one recommended in the agreement and that the
court's sentencing calculation would depend in part on its review
of the PSR. The court also informed Ortiz that, if the court
accepted the plea agreement and sentenced Ortiz according to its
terms, Ortiz would waive and surrender his right to appeal. A
sentencing hearing was scheduled for September 16, 2010.
The government first referenced the maximum penalty of
life imprisonment under 18 U.S.C. § 924(c)(1)(A)(iii) in an initial
PSR filed on September 3, 2010 and an amended PSR filed on
September 10, 2010. It is unclear, however, whether the
government's belated attempt to notify Ortiz that he might receive
a life sentence was successful. Because Ortiz did not receive the
PSR at least 35 days before his sentencing hearing, as required by
Federal Rule of Criminal Procedure 32(e)(2), Ortiz's counsel filed
a motion to continue the hearing. In that motion, Ortiz's counsel
stated that he "came to discuss [the PSR and amended PSR] with
[his] client yesterday, September 13, 2010, barely three (3) days
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from the sentencing date." Ortiz's counsel further stated that he
would normally advise his client to waive the 35-day notice period
required by Rule 32(e)(2), but due to the nature of the case and
"the need to thoroughly study the reports and further discuss with
[his] client the contents of these," he was requesting a
continuance of the sentencing date. The district court rescheduled
the hearing for October 21, 2010.
Four things happened at the sentencing hearing that are
important here. First, the district court failed to confirm
whether Ortiz had in fact reviewed the PSR with his attorney.
Second, the court informed Ortiz that the maximum sentence under
18 U.S.C. § 924(c)(1)(A)(iii) was life imprisonment. Third, the
court imposed a sentence of 360 months, finding that the sentence
to which the parties had agreed, 120 months, did not "reflect the
seriousness and aggravated nature of the offense." Fourth, after
informing Ortiz that he had waived his "right to appeal substantive
issues regarding the conviction and sentence," the district court
went on to say, "I must tell you, Mr. Ortiz, that because the Court
has not sentenced you according to the terms and conditions of the
Plea Agreement, you do have the right to appeal." Ortiz did not
object to the court's failure to inquire about the PSR, nor did he
ask that his plea be vacated once the court informed him of the
maximum penalty.
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Ortiz's co-defendant, Rodríguez, elected to go to trial.
Rodríguez argued that Santiago's death had been the result of a
street fight, not an attempted carjacking. On June 30, 2010, a
jury convicted Rodríguez of Counts One and Two but acquitted him as
to Counts Three and Four. Rodríguez received a sentence of 180
months' imprisonment.
II. Discussion
A. The Waiver of Appeal
We begin by addressing the waiver of appeal that Ortiz
executed as part of his plea agreement, which, if enforceable,
would preclude our consideration of the alleged Rule 11 and Rule 32
violations.
A waiver of appeal is enforceable "if it is valid and the
defendant's claim lies within its scope." United States v.
Padilla-Colón, 578 F.3d 23, 28 (1st Cir. 2009). For a waiver to be
valid, the defendant must have entered into it knowingly and
voluntarily. United States v. Teeter, 257 F.3d 14, 24-25 (1st Cir.
2001). To determine whether a defendant's claim falls within the
scope of an otherwise valid waiver, we examine what the parties
agreed to, interpreting the agreement under basic contract
principles. United States v. Acosta-Roman, 549 F.3d 1, 3 (1st Cir.
2008). We construe any ambiguities in the waiver of appeal
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provision in favor of allowing the appeal to proceed. United
States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir. 2010).3
In this case, Ortiz agreed to waive his right to appeal
the district court's judgment and sentence if the court:
(1) accepted the agreement; and (2) sentenced Ortiz according to
the agreement's terms and conditions. Those terms and conditions
included a recommended sentence of 120 months and a provision
confirming that the district court had sound discretion to impose
"any sentence within the statutory maximum set for the offense to
which the defendant pleads guilty." Nowhere in the agreement,
however, did the government specify the maximum penalty, which was
life imprisonment. The agreement merely listed the statutory
minimum of "imprisonment of not less than ten (10) years."
The government argues that Ortiz's waiver of appeal is
enforceable because the district court, at the change-of-plea
hearing, ensured that Ortiz had knowingly and voluntarily entered
into the waiver and then accepted Ortiz's plea of guilty, which the
government equates with having accepted the plea agreement itself.
The government further contends that Ortiz's 360-month sentence
falls within the scope of what Ortiz consented to in the plea
3
Though we need not reach the issue here, even if a defendant
entered into an appellate waiver knowingly and voluntarily and his
claim lies within the scope of that waiver, we may refuse to
enforce the waiver if doing so would result in a miscarriage of
justice. Sotirion v. United States, 617 F.3d 27, 33 (1st Cir.
2010).
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agreement, which only promised that the government would recommend
a sentence of 120 months.4
To determine whether a defendant entered into a waiver of
appellate rights knowingly and voluntarily, we examine the text of
the plea agreement and the content of the change-of-plea colloquy.
Teeter, 257 F.3d at 24. We first confirm that the written
agreement contains a clear statement elucidating the scope of the
waiver. Id. We have previously upheld waivers of this exact
nature, though we emphasize again today that it would be better
practice, given "the frequency of appeals involving waivers," for
the government to draft waiver provisions that "make specific
reference to any terms and conditions of the plea agreement that
are not intended by the parties to be covered by the waiver."
Acosta-Roman, 549 F.3d at 4 n.3 (emphasis in original).
Given that the text of the waiver provision was clear
enough on its face, we next examine the transcript of the change-
of-plea hearing to ascertain whether the court's interrogation
sufficed "to ensure that the defendant freely and intelligently
4
The government urges us to disregard the district court's
statement at the sentencing hearing that Ortiz had a right to
appeal because the court had not sentenced him according to the
plea agreement's terms and conditions. Because we find that
Ortiz's waiver of appellate rights was not knowing and voluntary,
we need not address whether the district court in fact sentenced
Ortiz according to the plea agreement's terms and conditions, such
that Ortiz's claim would fall within the scope of the waiver. See
United States v. McCoy, 508 F.3d 74, 77 (1st Cir. 2007) ("Even a
knowing and voluntary appeal waiver only precludes appeals that
fall within its scope.").
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agreed to waive [his] right to appeal." Teeter, 257 F.3d at 24.
This includes an inquiry into whether the district court informed
the defendant of the ramifications of the waiver. See, e.g.,
Acosta-Roman, 549 F.3d at 3. While the district court did question
Ortiz specifically about his understanding of the waiver provision,
the court failed to comply with Rule 11(b)(1)(H)'s mandate that the
court inform the defendant of, and ascertain that the defendant
understands, "any maximum possible penalty."5 The court did
neither. Perhaps this error could have been mitigated if the plea
agreement had included the maximum penalty, or there was other
evidence that the defendant had been informed of and understood the
maximum penalty. But there is no such evidence. Furthermore, any
opportunity the court might have had at the sentencing hearing to
cure the omission and provide Ortiz with time to consider
withdrawing his plea was marred by other mistakes, which we
describe later.
Under the circumstances, we are not convinced that
Ortiz's plea was knowing, and we therefore choose not to enforce
the waiver. We can thus reach the merits of Ortiz's claim.
5
Rule 11(b)(1)(H) refers to the "maximum possible penalty"
and not to the "statutory penalty" or "statutory maximum." It
therefore does not provide an exception for situations like this
one, in which the statute itself does not specify a maximum.
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B. The Rule 11 Violation
We review Ortiz's underlying Rule 11 claim for plain
error, because Ortiz failed to object to the error or move to
withdraw his plea in the district court. See United States v.
Vonn, 535 U.S. 55, 59 (2002); United States v. Rivera-Maldonado,
560 F.3d 16, 19 (1st Cir. 2009). In order to establish plain
error, a defendant must show that: (1) an error occurred; (2) the
error was plain; (3) the error affected the defendant's substantial
rights; and (4) the error "seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings." Rivera-
Maldonado, 560 F.3d at 19 (quoting Vonn, 535 U.S. at 62-63)
(alteration in original) (internal quotation marks omitted).
Rule 11 requires that the district court inform the
defendant during the plea colloquy of "any maximum possible
penalty, including imprisonment, fine, and term of supervised
release." Fed. R. Crim. P. 11(b)(1)(H). The parties agree that
the district court failed, at the change-of-plea hearing, to inform
Ortiz of the maximum penalty for discharging a dangerous weapon in
relation to a crime of violence under 18 U.S.C.
§ 924(c)(1)(A)(iii). The parties also agree that the plea
agreement itself failed to specify the maximum.
We begin with a note about the maximum penalty under
18 U.S.C. § 924(c)(1)(A). The statute does not include an express
maximum. Rather, the statute provides escalating minimums, based
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on whether the firearm was carried (five years), brandished (seven
years), or discharged (ten years). See id. The maximum penalty
thus derives from caselaw, much of it interpreting the Supreme
Court's suggestion in Harris v. United States, 536 U.S. 545 (2002),
that "[s]ince [18 U.S.C. § 924(c)(1)(A)'s] subsections alter only
the minimum, the judge may impose a sentence well in excess of
seven years, whether or not the defendant brandished the firearm."
Id. at 554; see also id. at 575-76 (Thomas, J., dissenting)
(explicitly referring to the maximum as life imprisonment). Today,
to avoid any uncertainty in this circuit, we join all of our sister
circuits in finding that the maximum penalty under 18 U.S.C.
§ 924(c)(1)(A) is life imprisonment.6
The fact that we had not explicitly spoken regarding the
maximum penalty at the time of Ortiz's change-of-plea hearing did
not, however, excuse the district court of its obligation to inform
Ortiz of the maximum at that hearing. There is no evidence before
us, nor does either party contend, that the district court was
unsure of the maximum penalty. The court informed Ortiz at the
6
See United States v. Stewart, 628 F.3d 246, 258 (6th Cir.
2010); United States v. Shabazz, 564 F.3d 280, 289 (3d Cir. 2009);
United States v. Johnson, 507 F.3d 793, 798 (2d Cir. 2007); United
States v. Gamboa, 439 F.3d 796, 811 (8th Cir. 2006); United States
v. Dare, 425 F.3d 634, 642 (9th Cir. 2005); United States v. Avery,
295 F.3d 1158, 1170 (10th Cir. 2002); United States v. Cristobal,
293 F.3d 134, 147 (4th Cir. 2002); United States v. Sandoval, 241
F.3d 549, 551 (7th Cir. 2001); United States v. Pounds, 230 F.3d
1317, 1319 (11th Cir. 2000); United States v. Sias, 227 F.3d 244,
246 (5th Cir. 2000).
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sentencing hearing that the maximum penalty under 18 U.S.C.
§ 924(c)(1)(A)(iii) was life imprisonment, and the PSR contained
that same information. The district court seems to have simply
forgotten to inform Ortiz of the maximum at the change-of-plea
hearing, as required by Rule 11(b)(1)(H). That error "was both
obvious and plain," and the first two prongs of the plain error
test are thus met. United States v. Borrero-Acevedo, 533 F.3d 11,
17 (1st Cir. 2008).
The third prong of the plain error test, whether the
error affected Ortiz's substantial rights, is a closer question.
Ortiz has the burden of demonstrating "a reasonable probability
that, but for the error, he would not have entered the plea."
United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). That
requires a showing, "informed by the entire record, that the
probability of a different result is 'sufficient to undermine
confidence in the outcome' of the proceeding." Id. at 83 (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)).
Ortiz essentially makes two claims as to how the Rule 11
error affected his substantial rights. First, his brief argues
that:
The record reflects that by pleading guilty
Ortiz was surrendering an important defense to
the carjacking charges since there was
evidence that what occurred was a street brawl
that had nothing to do with an attempted
carjacking which if believed by the jury or
established during the course of trial could
have led to an acquittal.
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The government counters that Ortiz's co-defendant, Rodríguez, used
this very same defense at trial and was found guilty of conspiracy
to commit carjacking and of carjacking (though Rodríguez only
received a sentence of 180 months). It is not for us, however, to
assess whether a defendant would likely have succeeded at trial,
had he elected not to plead guilty in the absence of a Rule 11
error. If the defendant can show a reasonable probability that,
but for the error, he would not have entered the plea, we must
accept that showing without judging its merits. See Dominguez
Benitez, 542 U.S. at 85 ("The point of the question is not to
second-guess a defendant's actual decision; if it is reasonably
probable he would have gone to trial absent the error, it is no
matter that the choice may have been foolish."). Ortiz's second
claim, in the alternative, is that, if he had been properly
informed of the maximum penalty, he might have tried to insist on
a Rule 11(c)(1)(C) agreement, which would have allowed him to
withdraw his plea and proceed to trial if the district court had
rejected the agreement.
The government urges us to find that the error did not
affect Ortiz's substantial rights, because Ortiz was notified of
the maximum penalty both in the PSR and during the sentencing
hearing and did not object or move to withdraw his plea. The
government suggests that Ortiz's inaction belies his claim that,
but for the Rule 11 error, there is a reasonable probability that
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he would not have elected to plead guilty. If the record clearly
established that Ortiz had reviewed the PSR with his attorney prior
to the sentencing hearing, that might indeed negate Ortiz's claim
that the Rule 11 error affected his substantial rights, given
Ortiz's failure to object to the PSR. The record before us,
however, reveals no such thing, because the district court failed
to confirm at Ortiz's sentencing hearing that Ortiz had read and
discussed the PSR with his attorney. We are thus met with another
complicating factor, which forces us to take one more detour.
Federal Rule of Criminal Procedure 32(i)(1)(A) requires
a district court, at sentencing, to "verify that the defendant and
the defendant's attorney have read and discussed the presentence
report and any addendum to the report." The government concedes
that the district court failed to make the proper inquiry under
Rule 32(i)(1)(A) but nonetheless argues that there is sufficient
evidence that Ortiz read and discussed the PSR with his attorney to
satisfy the Rule. The government relies on Ortiz's motion to
continue the original sentencing hearing, in which Ortiz's counsel
stated that he "came to discuss" the PSR and amended PSR with his
client on September 13, 2010 and "need[ed] to thoroughly study the
reports and further discuss with [his] client the content of
these." These statements alone do not establish that Ortiz
actually read or discussed the reports with his attorney. Though
we have held in the past that "it is enough that the court
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determine that the defendant and counsel have had an opportunity to
read and discuss the report," United States v. Cruz, 981 F.2d 613,
620 (1st Cir. 1992), we were interpreting a prior iteration of the
Rule, which only required the court to "determine that the
defendant and defendant's counsel have had the opportunity to read
and discuss the presentence investigation report," id. at 619 n.9
(emphasis added). The Rule, which was amended in 1994, now
requires the district court to confirm that "the defendant and the
defendant's attorney have read and discussed" the report. Fed. R.
Crim. Pro. 32(i)(1)(A) (emphasis added). Without going any
further, we find that Rule 32(i)(1)(A)'s mandate was not satisfied
here.7
Given the record before us, we must therefore assume that
Ortiz was notified for the first time at his sentencing hearing
that he might receive a life sentence. The fact that Ortiz said
nothing when the district court informed him of the maximum penalty
at the sentencing hearing does not convince us that Ortiz would
have elected to plead guilty regardless of the Rule 11 error.
7
The government relies in part on United States v. Espinola,
242 F. App'x 709 (1st Cir. 2007), vacated on other grounds, 552
U.S. 1240 (2008), an unpublished opinion in which we held that,
where "it is clear from the record that [defense] counsel was
thoroughly familiar with the PSR, 'we will not assume that defense
counsel did not discuss so critically important a document with his
client,'" id. at 711 (quoting Cruz, 981 F.2d at 620). Here, it is
not "clear from the record" that Ortiz's attorney was "thoroughly
familiar with the PSR." Id.-16-
Dominguez Benitez requires Ortiz to demonstrate a reasonable
probability, not an absolute certainty, that he would not have
entered the plea in the absence of the error. 542 U.S. at 83.
As we did in Rivera-Maldonado, we find here that the
error "went to the very purpose of Rule 11, 'which is to advise a
defendant of the actual consequences of his plea so that he can
realistically decide whether to plead guilty.'" 560 F.3d at 20(quoting United States v. Santo, 225 F.3d 92, 98 (1st Cir. 2000)).
In Rivera-Maldonado, the magistrate judge failed, during the Rule
11 colloquy, to inform the defendant that he could be sentenced to
a lifetime of supervised release. Id. at 18. Relying on erroneous
information in the plea agreement, the court instead told the
defendant that the maximum supervised release term was three years.
Id. The defendant stated that "the information he received from
the plea agreement and the magistrate judge 'played a crucial role
in his decision to plead guilty.'" Id. at 21. Given that, as well
as the "dramatic difference between a three year period of
supervised release and a lifetime of supervised release," we found
that the defendant had shown a reasonable probability that, but for
the error, he would not have entered the plea. Id.8
8
Similarly, in Santo, we found that a Rule 11 error
"reasonably could have affected [the defendant's] decision to
change his plea to guilty" where the mandatory minimum was ten
years but the defendant was informed in the plea agreement and
during the plea colloquy that it was five years. 225 F.3d at 101.
We decided Santo before the Supreme Court held in Vonn and
Dominguez Benitez that a defendant who fails to preserve a Rule 11
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Of course, in Rivera-Maldonado, the defendant actually
received the maximum sentence, a lifetime of supervised release,
whereas Ortiz was sentenced below the maximum. Nonetheless, the
thirty-year sentence Ortiz received was well above the ten-year
minimum that had been mentioned in his plea agreement and during
his plea colloquy. The omitted information here, like the
erroneous information in Rivera-Maldonado, "dramatically altered
the sentencing stakes for the defendant," id., and Ortiz has
established a reasonable probability that he would not have entered
into the plea agreement if he had been properly informed of those
stakes. Under these particular circumstances, the Rule 11 error
affected Ortiz's substantial rights.
Finally, as in Rivera-Maldonado, the Rule 11 error
"seriously affect[ed] the fairness, integrity, or public reputation
of judicial proceedings" such that we must vacate Ortiz's plea and
remand for a new change-of-plea hearing. Id. at 22. One of the
core concerns of Rule 11 is that the defendant have "knowledge of
the consequences of his plea." United States v. Hernandez-Wilson,
claim must meet the plain error standard, which requires the
defendant to establish a reasonable probability that, but for the
error, he would not have pled guilty. See Vonn, 535 U.S. 55;
Dominguez Benitez, 542 U.S. 74. Nonetheless, "we recognized in
Santo that the defendant faced a 'high hurdle' because he had
failed to seek withdrawal of his guilty plea in the lower court.
We found the defendant had cleared that high hurdle and had shown
a 'substantial defect in the Rule 11 proceeding itself.'" Rivera-
Maldonado, 560 F.3d at 20 (quoting Santo, 225 F.3d at 97) (internal
citation omitted).
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186 F.3d 1, 6 (1st Cir. 1999). The failure to insist on the
requirements of Rule 11 may well deter future defendants from
entering into guilty pleas and waivers of appeal, which conserve
judicial resources and promote "efficiency and finality in the
adjudication of criminal cases." Teeter, 257 F.3d at 22.
Because we find that the Rule 11 violation constituted
plain error, we need not address whether the Rule 32 violation,
which Ortiz also raises for the first time on appeal, meets the
same fate.
III. Conclusion
While plain error is a "high hurdle," United States v.
Henderson, 320 F.3d 92, 105 (1st Cir. 2003), some defendants do
clear it, and Ortiz has. On remand, Ortiz may of course receive a
sentence far longer than 360 months. Indeed, that risk is very
real, given the underlying conduct at issue here. But Ortiz made
the decision to proceed with this appeal with full knowledge of its
potential consequences.9 The same cannot be said of his original
decision to plead guilty.
Vacated and remanded.
9
At our request, Ortiz's attorney has filed a certified
statement confirming that he discussed with his client the
possibility that, if we were to grant his appeal and remand for a
new change-of-plea hearing, he could receive up to a life sentence
on remand. Notwithstanding that risk, Ortiz's attorney has
represented to us that Ortiz wishes to proceed with his appeal.
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