United States v. Bernardo Mancinas-Flores ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
No. 08-10094
v.
BERNARDO MANCINAS-FLORES, AKA  D.C. No.
CR-05-01086-ROS
Arturo Morales-Garcia, AKA
OPINION
Bernardo Mancias-Flores,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted October 5, 2009
San Francisco, California
Filed December 2, 2009
Before: Pamela Ann Rymer and A. Wallace Tashima,
Circuit Judges, and Lynn S. Adelman, * District Judge.
Opinion by Judge Adelman;
Partial Concurrence and Partial Dissent by Judge Rymer
*The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
15717
UNITED STATES v. MANCINAS-FLORES 15721
COUNSEL
Daniel Kaplan, Assistant Federal Public Defender, Phoenix,
Arizona, for the defendant-appellant.
Lisa Jennis Settel, Assistant United States Attorney, Phoenix,
Arizona, for the plaintiff-appellee.
OPINION
ADELMAN, District Judge:
A Phoenix grand jury indicted defendant Bernardo
Mancinas-Flores for a variety of offenses arising out of defen-
dant’s involvement in smuggling undocumented aliens into
the United States and holding them for ransom in a stash
house. On the morning the trial was to begin, defendant
decided to enter into a plea agreement with the government
pursuant to which he would plead guilty to a firearm charge.
Defendant attempted to plead guilty, but the district court
rejected his plea and ordered the case to proceed to trial,
whereupon the jury found defendant guilty on all counts, and
the court sentenced him to life in prison.
On appeal, defendant challenges the district court’s denial
of his motion to suppress evidence obtained pursuant to a
15722 UNITED STATES v. MANCINAS-FLORES
warrantless search of the stash house, its rejection of his
guilty plea, its decision admitting evidence of a sexual assault
and its sentence. We affirm the district court’s denial of the
motion to suppress. However, we vacate the court’s rejection
of defendant’s guilty plea and remand for a new plea hearing.
Because we remand for a new plea hearing, we do not address
the district court’s decision to admit evidence of a sexual
assault or its sentence.
I.
On October 6, 2005, Immigration and Customs Enforce-
ment (“ICE”) agents in Phoenix learned that a Michigan resi-
dent had reported that smugglers were holding a relative of
the Michigan resident hostage in Phoenix pending payment of
a ransom. On October 7, 2005, Phoenix ICE learned that a
Kansas resident had called ICE agents in Kansas City and
reported that smugglers were holding his relative hostage in
Phoenix. The Kansas City resident knew the smugglers’
phone number, and ICE commenced an investigation, work-
ing with the telephone service provider to locate the phone
that the smugglers were using to make their demands. ICE
also coordinated and recorded additional calls between the
Kansas City resident and the smugglers, and during such
calls, the Kansas City resident persuaded the smugglers to
give him until October 10, 2005 to pay the ransom.
On October 10, 2005, at approximately 11:00 a.m., ICE
identified a residence in Phoenix where the smugglers were
holding the undocumented aliens. ICE then contacted the
Phoenix Police Department’s Special Assignments Unit
(“SAU”) and requested that officers enter the residence and
rescue the hostages. When ICE initially discussed the situa-
tion with SAU, SAU determined that exigent circumstances
justifying a warrantless entry into the residence were not pres-
ent. ICE and SAU discussed the possibility of a “knock and
talk” operation, in which officers would knock on the door of
the stash house and request permission to enter it. However,
UNITED STATES v. MANCINAS-FLORES 15723
between 11:30 a.m. and 11:45 a.m., an ICE agent reported
that the Michigan resident had just called again and stated that
during the October 6 call, the smugglers had threatened to
rape and beat his female relative unless he paid the ransom
immediately. Based upon this information, SAU decided that
exigent circumstances existed and, at about 12:15 p.m., exe-
cuted a warrantless entry into the stash house, discovering
seventeen undocumented aliens and a loaded shot gun. The
hostages identified defendant and Andres Vazquez-Vera as
the smugglers.
The government initially charged defendant and Vazquez-
Vera with conspiracy to commit hostage taking, hostage tak-
ing, conspiracy to harbor illegal aliens and harboring illegal
aliens. In a superceding indictment, it added a fifth count,
possession or use of a firearm in a crime of violence, in viola-
tion of 18 U.S.C. § 924(c). Vazquez-Vera eventually pleaded
guilty.
Defendant moved to suppress the evidence obtained from
the entry into the stash house, and the district court denied the
motion, holding that defendant had no legitimate expectation
of privacy in the stash house and that even if he had, exigent
circumstances justified the search. The court also denied
defendant’s motion to bar the admission of evidence that he
had sexually assaulted a female alien.
On the morning of trial, the parties informed the court that
defendant had decided to plead guilty to the firearm count in
exchange for the government’s dismissing the remaining
counts and agreeing to a sentencing range of twenty to thirty
years. The court replied that it would reject any plea agree-
ment that limited the sentence to thirty years, but that it would
entertain a plea agreement calling for a higher sentence. The
parties then reached a new plea agreement, under which
defendant would plead guilty to the firearm charge in
exchange for dismissal of the remaining counts and a sentenc-
ing range of twenty-five to forty years.
15724 UNITED STATES v. MANCINAS-FLORES
The court then engaged in a colloquy with defendant,
which culminated in the following exchange:
THE COURT: Do you understand what’s happening
now today?
THE DEFENDANT: I do understand.
THE COURT: What’s happening?
THE DEFENDANT: I am accepting a charge, a
crime.
THE COURT: Have you talked to your attorney
about it?
THE DEFENDANT: Yes, we have talked.
THE COURT: And did she assist you in understand-
ing what the agreement was?
THE DEFENDANT: Yes, she communicated to me
the things.
THE COURT: And have you decided, then, to plead
guilty?
THE DEFENDANT: Yes, I have decided to plead
guilty because I was told otherwise I could get life
in prison and I do have a family and children.
THE COURT: Are you pleading guilty because you
are guilty?
THE DEFENDANT: Well, those are the charges
they have filed against me. I have never been shown
evidence of fingerprints on the weapons or things
like that.
UNITED STATES v. MANCINAS-FLORES 15725
THE COURT: Are you pleading guilty because you
are guilty?
THE DEFENDANT: Well, I’m really not guilty.
THE COURT: All right. Let’s bring the jury up. All
right.
The court immediately commenced the trial, and the jury
found the defendant guilty on all five counts. The court sen-
tenced him to life imprisonment on the hostage taking counts,
120 months on the harboring counts, and eighty-four months
on the firearm count, all concurrent, except for the firearm
sentence, which was consecutive.
II.
Defendant argues that the district court erred in its handling
of his guilty plea. He contends that the plea met all the
requirements of Fed. R. Crim. P. 11(b), and that therefore the
court had no discretion to reject it. See In re Vasquez-
Ramirez, 443 F.3d 692, 695-96 (9th Cir. 2006) (en banc)
(holding that a district court is required to accept a guilty plea
that satisfies the requirements of Fed. R. Crim. P. 11(b)).
Alternatively, defendant argues that even if the court had dis-
cretion to reject his plea, it did not adequately explain its rea-
sons for doing so and thus failed to actually exercise
discretion. Because the district court abruptly cut off the plea
colloquy, we cannot conclude that the plea satisfied all of
Rule 11(b)’s requirements. As discussed below, however, we
agree with defendant’s alternative argument and therefore
vacate the district court’s rejection of defendant’s guilty plea
and remand for a new plea hearing.
A.
[1] We begin the analysis by reviewing some of the general
principles applicable to plea proceedings under the Federal
15726 UNITED STATES v. MANCINAS-FLORES
Rules of Criminal Procedure. A defendant may plead not
guilty, guilty or, with the court’s consent, nolo contendere.
Fed. R. Crim. P. 11(a). A plea of not guilty puts all material
elements of the crime in play, even the most obvious facts. 1A
Charles Alan Wright, Federal Practice & Procedure § 173
(3d ed. 1999). In contrast, a guilty plea is an admission of all
the elements of a formal criminal charge. McCarthy v. United
States, 394 U.S. 459, 466 (1969). A plea of nolo contendere
is “viewed not as an express admission of guilt but as a con-
sent by the defendant that he may be punished as if he were
guilty and a prayer for leniency.” North Carolina v. Alford,
400 U.S. 25, 36 n.8 (1970).
[2] Although unmentioned in Rule 11, courts and lawyers
sometimes refer to an “Alford plea.” An Alford plea is a plea
of guilty in which the defendant maintains his innocence. See
generally Alford, 400 U.S. at 36. See also United States v.
Crowell, 374 F.3d 790, 791 (9th Cir. 2004). An Alford plea
differs from a nolo plea in that a defendant pleading nolo con-
tendere takes no position on guilt or innocence, whereas a
defendant entering an Alford plea takes the position that he is
not guilty. It bears repeating that, as far as the text of Rule 11
is concerned, there is no such thing as an Alford plea. An
Alford plea is simply shorthand for a guilty plea accompanied
by a protestation of innocence. Thus, when a defendant offers
what courts and lawyers describe as an Alford plea, the defen-
dant is actually offering, in Rule 11 terms, a guilty plea. See
United States v. Tunning, 69 F.3d 107, 110-11 (6th Cir. 1995)
(discussing difference between Alford and nolo pleas and not-
ing that an Alford plea is a guilty plea within the meaning of
Rule 11, not a nolo plea).
Rule 11 imposes a number of requirements on a district
court confronted with a guilty or nolo plea. Rule 11(b)(1)
requires the court to place the defendant under oath and
inform him of and determine that he understands both his
rights and the consequences of his plea. Rule 11(b)(2)
requires the court to ensure that the plea is voluntary — that
UNITED STATES v. MANCINAS-FLORES 15727
is, that it did not result from force, threats or promises other
than those in the plea agreement.
[3] If the defendant offers a guilty plea (whether an Alford
plea or other), Rule 11(b)(3) requires the court to determine
that the plea has a factual basis. The purpose of this require-
ment is to ensure that the defendant is not mistaken about
whether the conduct he admits to satisfies the elements of the
offense charged. McCarthy, 394 U.S. at 466-67. Put differ-
ently, the factual basis requirement is designed to “protect a
defendant who is in the position of pleading voluntarily with
an understanding of the nature of the charge but without real-
izing that his conduct does not actually fall within the
charge.” Fed. R. Crim. P. 11 advisory committee’s note
(1966). See also United States v. Mastrapa, 509 F.3d 652,
658-60 (4th Cir. 2007) (stating that the factual basis require-
ment guards against possible discrepancy between the defen-
dant’s acknowledgment of guilt and his or her understanding
of what the crime entailed). The factual basis requirement
does not apply to nolo pleas. See Fed. R. Crim. P. 11(b)(3).
This is so because a defendant pleading nolo contendere takes
no position on whether he committed the elements of the
offense, and the court therefore has no reason to examine
whether, in fact, he did. See Fed. R. Crim. P. 11 advisory
committee’s note (1966) (“For a variety of reasons it is desir-
able in some cases to permit entry of judgment upon a plea
of nolo contendere without inquiry into the factual basis for
the plea.”).
[4] Rule 11(b)(3) does not specify the exact nature of the
inquiry that a district court must make when determining
whether a guilty plea has a factual basis. However, the Advi-
sory Committee notes to the 1974 amendments suggest that
“[a]n inquiry might be made of the defendant, of the attorneys
for the government and the defense, of the presentence report
when one is available, or by whatever means is appropriate in
a specific case.” Thus, a court need not rely on the plea collo-
quy alone and “may conclude that a factual basis exists from
15728 UNITED STATES v. MANCINAS-FLORES
anything that appears on the record.” Mastrapa, 509 F.3d at
660 (internal quotation marks omitted). Further, as indicated
in Alford, a court can find a factual basis for a plea even if the
defendant insists that he is innocent. 400 U.S. at 37; United
States v. Neel, 547 F.2d 95, 96 (9th Cir. 1976). In such cir-
cumstances, the court must look to other evidence in the
record to determine whether the plea has a factual basis. See
Maxwell, 368 F.2d 735, 739 n.3 (9th Cir. 1966) (noting that
trial court could have found factual basis for plea even though
defendant could not personally vouch for his guilt).
Before accepting a plea of nolo contendere, a court must
consider the parties’ views and the public interest in the effec-
tive administration of justice. Fed. R. Crim. P. 11(a)(3).
Although not precisely specified by the Rule, the reason for
considering these factors is that nolo pleas come with various
costs and benefits, and the court must ensure that in the case
before it the benefits outweigh the costs. See Fed. R. Crim. P.
11 advisory committee’s note (1974); United States v. Am.
Bakeries Co., 284 F. Supp. 864, 868-69 & n.1 (W.D. Mich.
1968) (discussing pros and cons of nolo pleas). In determining
whether to accept a nolo plea, a district court has broad dis-
cretion and may reject the nolo plea if it determines that
accepting the plea is not in the public interest. See Maxwell,
368 F.2d at 738.
Finally, we note that a district court may also have discre-
tion to reject an Alford plea — even if the plea satisfies the
Rule 11(b) requirements. See United States v. O’Brien, 601
F.2d 1067, 1069 (9th Cir. 1979). However, our decision in
Vasquez-Ramirez casts doubt on this proposition. In Vasquez-
Ramirez, this court, sitting en banc, held that a district court
has no discretion to reject a guilty plea that meets the require-
ments of Rule 11(b). As discussed, Rule 11(b) does not
require a defendant to admit guilt. Thus, Vasquez-Ramirez
suggests that a district court has no discretion to reject a guilty
plea from a defendant who maintains his innocence so long as
the plea otherwise meets the Rule 11(b) requirements. How-
UNITED STATES v. MANCINAS-FLORES 15729
ever, Vasquez-Ramirez also acknowledged O’Brien’s state-
ment that a court has discretion to reject an Alford plea and
did not expressly overrule O’Brien. 443 F.3d at 700. In the
present case, we need not resolve the tension between
O’Brien and Vasquez-Ramirez because, as explained below,
it is not clear that the district court rejected defendant’s plea
because it was an Alford plea.
B.
In the present case, defendant pleaded guilty, and when the
court questioned him, he stated that he had decided to plead
guilty because he had been advised that otherwise he faced
the possibility of a life sentence. The court then asked him
whether he was “pleading guilty because he was guilty,” and
he responded as follows: “Well, those are the charges they
have filed against me. I have asked for evidence but, for
example, I have never been shown evidence of fingerprints on
the weapons or things like that.” The court then repeated its
earlier question: “Are you pleading guilty because you are
guilty?,” and when defendant responded, “Well, I’m really
not guilty,” the court ended the colloquy and called for the
jury. The court did not state a reason for rejecting defendant’s
plea.
[5] The court’s failure to state a reason for rejecting the
plea is problematic. As explained in the discussion above, a
court may reject a guilty plea for a number of different rea-
sons, and usually we would review its decision to reject the
plea for one of those reasons for abuse of discretion. How-
ever, without knowing the basis for the decision to reject the
plea in the first place, we cannot review for abuse of discre-
tion. Abuse-of-discretion review is not meaningful where a
court fails to give reasons for its decision and its reasons are
not apparent from the record. Simpson v. Lear Astronics
Corp., 77 F.3d 1170, 1177 (9th Cir. 1996); Rarogal v. INS, 42
F.3d 570, 572 (9th Cir. 1994) (discretionary decision must
show proper consideration of all factors); Ins. Co. of N. Am.
15730 UNITED STATES v. MANCINAS-FLORES
v. Moore, 783 F.2d 1326, 1328 (9th Cir. 1986) (“Unless it is
clear from the record that the district court’s exercise of dis-
cretion was based on consideration of the relevant factors, we
cannot review the decision for abuse of discretion without
benefit of the lower court’s reason for deciding as it did.”
(Internal quotation marks and citations omitted)).
[6] In the present case, the district court did not give a rea-
son for rejecting defendant’s plea and its reasons are not
apparent from the record. The record tells us only that the
court acted after defendant said that he was really not guilty.
But this tells us nothing about the court’s reasoning. Indeed,
we can think of at least four reasons for the court’s action that
are consistent with this record: (1) the court mistakenly
thought it could not accept a guilty plea from a defendant who
maintained his innocence; (2) the court thought that the plea
lacked a factual basis and thus had to be rejected under Fed.
R. Crim. P. 11(b)(3); (3) the court considered defendant’s plea
an Alford plea and exercised its discretion to reject it; and (4)
the court considered the plea a nolo plea and exercised its dis-
cretion to reject it under Rule 11(a)(3). Some of these reasons
might constitute a satisfactory basis for rejecting defendant’s
plea, but others would not. The record sheds no light on
which of these possibilities, if any, was the court’s actual rea-
son for rejecting the plea, and therefore we cannot determine
whether the court abused its discretion.
[7] This is not a case in which we may affirm so long as
any ground for affirming appears in the record. So although
it is possible that the district court properly exercised its dis-
cretion, such possibility does not enable us to affirm. When
a district court makes a discretionary decision, we will affirm
so long as the decision is within the range of permissible deci-
sions that the court could have made given the law and the
facts confronting it. But before we can be sure that the district
court’s choice falls within that range, we need to be certain
that the district court applied the proper law, considered all
the relevant factors, and actually exercised its discretion. See
UNITED STATES v. MANCINAS-FLORES 15731
United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.
2005) (“[W]henever a district judge is required to make a dis-
cretionary ruling that is subject to appellate review, we have
to satisfy ourselves, before we can conclude that the judge did
not abuse his discretion, that he exercised his discretion, that
is, that he considered the factors relevant to that exercise.”).
In short, when we review for abuse of discretion, we necessar-
ily review the district court’s decision-making process, not
simply whether the decision resulted in a permissible outcome.1
The dissent characterizes defendant’s plea as a hybrid of an
Alford and a nolo plea. Diss. Op. at 15740 n.2 & 15742 n.5.
Relying on United States v. Buonocore, 416 F.3d 1124, 1129-
31 (10th Cir. 2005), the dissent then argues that a judge may
adopt a policy of never accepting Alford or nolo pleas and
thus may reject either type of plea (or a hybrid) without stat-
ing any reason. But even assuming that a judge may adopt a
policy of refusing to accept all Alford or nolo pleas regardless
of the facts and circumstances of the case before her,2 the
judge must at least disclose that she has such a policy and that
she is rejecting the defendant’s plea pursuant to that policy.
Otherwise, we are left to guess at the district court’s reason
1
Although, as the dissent points out, Diss. Op. at 15745, in some cir-
cumstances an appellate court will presume that a trial judge correctly
applied the relevant law, it cannot do so where, as here, the judge fails to
give any reason for a discretionary decision. To the contrary, we have held
that “[u]nless it is clear from the record that the district court’s exercise
of discretion was based on consideration of the relevant factors, we cannot
review the decision for abuse of discretion without benefit of the lower
court’s reason for deciding as it did.” Ins. Co. of N. Am., 783 F.2d at 1328(internal quotation marks and citation omitted). Of course, a judge need
not “tick off” all applicable legal principles and show that it understood
and considered them, United States v. Carty, 520 F.3d 984, 992 (9th Cir.
2008) (en banc), but this does not mean that we will simply presume, in
the absence of reasons, that the judge did not abuse her discretion.
2
We stress that we do not decide that a district court in the Ninth Circuit
may adopt such a policy. Further, we reiterate that after Vasquez-Ramirez,
a district court may lack discretion to reject Alford pleas that satisfy the
requirements of Rule 11(b).
15732 UNITED STATES v. MANCINAS-FLORES
for rejecting the plea, and we cannot know whether the dis-
trict court applied the correct law or considered all the rele-
vant factors. Indeed, in Buonocore, the district judge stated
that she had a policy against accepting Alford and nolo pleas,
that the law did not require that she accept such pleas, and
that she saw no reason to depart from her policy with respect
to the defendant’s plea. 416 F.3d at 1127.3 This statement of
reasons revealed that the district judge at least applied the
proper law and exercised her discretion in concluding that
Alford and nolo pleas are generally not in the public interest.
Thus, Buonocore does not support the proposition that a dis-
trict judge need not give a reason when it rejects a guilty plea.
[8] The government suggests that the district court rejected
defendant’s plea because defendant’s statement that he was
really not guilty indicated that the plea was involuntary or
lacked a factual basis. The dissent also asserts that defen-
dant’s statement caused the plea to lack a factual basis. Diss.
Op. at 15739. However, by itself, defendant’s statement does
not suggest either that the plea was involuntary or that it
lacked a factual basis. Even if he believed himself not to be
guilty, defendant may have realized that he would likely be
convicted and that it was in his best interest to plead guilty.
If so, the plea would not have resulted from force, threats or
promises outside of the plea agreement, and defendant’s state-
ment that he was really not guilty would not have indicated
involuntariness.
[9] With respect to whether defendant’s statement indicated
the absence of a factual basis, during the plea colloquy the
district court did not discuss the elements of the firearm
3
Specifically, the court stated: “I do not accept Alfred [sic] pleas. That’s
what I told you at the beginning. I don’t accept them. I don’t accept
Alfreds [sic]. I don’t accept nolos. I cannot do this. You must admit intent.
I simply do not, nor will I. And I know the Supreme Court allows me to
do it. It’s disfavored, and I see no reason in this case to do that.” Buono-
core, 416 F.3d at 1127 (internal quotation marks omitted).
UNITED STATES v. MANCINAS-FLORES 15733
charge with defendant and did not ensure that defendant
understood how his conduct related to the elements of the
offense. And as explained above, the factual basis require-
ment is meant to ensure that a defendant does not plead guilty
based on a misunderstanding of his conduct in relation to the
elements of the crime charged. See McCarthy, 394 U.S. at
466-67; Mastrapa, 509 F.3d at 658-60; Fed. R. Civ. P. 11
advisory committee’s note (1966). If a defendant does not
understand the elements of the offense in the first place, his
statement that he is or is not guilty of that offense is meaning-
less. Thus, before the court could have found that defendant’s
plea lacked a factual basis based on his statement that he was
not guilty, it would have had to confirm that defendant knew
what guilt and innocence meant in the context of the firearm
charge. Only if defendant had denied committing a specific
element of the offense or protested his innocence even after
demonstrating that he understood the charge would the court
have had discretion to reject his plea for lack of a factual
basis. Even then, the court would have had to have actually
exercised its discretion and explained why it concluded that
the plea lacked a factual basis.
[10] Accordingly, we are not satisfied that the district
court’s rejection of defendant’s guilty plea was the result of
an exercise of discretion made after consideration of all the
relevant factors. We therefore vacate the court’s decision to
reject the plea. However, we cannot accept defendant’s con-
tention that the district court was required to accept his plea.
The court did not discuss all of the subjects listed in Rule
11(b)(2), nor did it determine that the plea was voluntary and
supported by a factual basis. For this reason, the Vasquez-
Ramirez principle — that a district court must accept a guilty
plea that meets all of the Rule 11(b) requirements — does not
govern this case. Rather, we will remand the case for a new
plea hearing to enable the district court to ensure that the plea
complies with Rule 11(b) and to properly exercise its discre-
tion in determining whether to accept the plea. On remand,
the district court must permit defendant to enter his guilty plea
15734 UNITED STATES v. MANCINAS-FLORES
on the terms agreed to by the government — that is, a plea of
guilty to the firearm count in exchange for dismissal of the
remaining counts and a sentencing range of twenty-five to
forty years.4 If the court accepts the plea, it must enter a new
judgment after sentencing defendant pursuant to the plea. In
United States v. Maddox, 48 F.3d 555, 559-60 (D.C. Cir.
1995), which we cited with approval in Vasquez-Ramirez, 443
F.3d at 700, the court utilized this procedure. We have also
used it in other cases where we concluded that a district court
abused its discretion in rejecting a plea. See, e.g. United States
v. Mendoza, 280 Fed. App’x 589, 590 (9th Cir. 2008).
Defendant asks that we direct that the case be assigned to
a different judge on remand, and the government has not
taken a position on reassignment. We deny the request
because the district judge has not “exhibited personal bias
requiring recusal,” nor are there any “unusual circumstances”
which warrant such reassignment. In re Ellis (Ellis v. U.S.
Dist. Court), 356 F.3d 1198, 1211 (9th Cir. 2004) (en banc).
C.
Before proceeding to the remaining issue, we address one
last matter in connection with the plea. The government
argues that even if the district court erred in rejecting the
guilty plea, we may review only for plain error because defen-
dant did not object after the court rejected his plea. However,
as the Seventh Circuit has recently explained, a party does not
“object” to a court’s ruling; rather, when a party tries to
inform the court that a ruling it has already made is erroneous,
it is taking an “exception” to the ruling. United States v. Bart-
lett, 567 F.3d 901, 910 (7th Cir. 2009). Under Fed. R. Crim.
P. 51(a), “[e]xceptions to rulings or orders of the court are
unnecessary.” Here, defendant asked the court to accept his
plea and argued in favor of it. At that point, the court was
4
The government has not indicated that it is unwilling to offer these
terms on remand.
UNITED STATES v. MANCINAS-FLORES 15735
required to ensure that the plea was appropriate. See United
States v. Alvarado-Arriola, 742 F.2d 1143, 1144 (9th Cir.
1982) (recognizing district court’s “duty,” upon defendant’s
presentation of a guilty plea, to determine whether the plea is
appropriate). For unspecified reasons, the district court
rejected the plea. At that point, defendant did not have to ask
the court to reconsider its decision or point out possible errors
in the decision.
[11] Even assuming defendant had an obligation to object
to the court’s ruling, the court afforded him no opportunity to
do so. Pursuant to Fed. R. Crim. P. 51(b), “[i]f a party does
not have an opportunity to object to a ruling or order, the
absence of an objection does not later prejudice that party.”
Here, when defendant stated that he was really not guilty, the
court called for the jury, giving defendant’s counsel no chance
to object, raise an exception, or otherwise remonstrate. Under
these circumstances, we cannot find that our review is limited
to plain error.
To be sure, defendant’s counsel might have better served
her client had she interrupted the court, asked for an explana-
tion of its decision and requested a recess to meet with her cli-
ent and determine whether to ask the court to reconsider its
rejection of the plea. But the Rules do not require a defendant
to force an objection or exception into the record. Rather,
exceptions are unnecessary, and an objection is required only
if the court affords a party the opportunity to make one. See
Cunningham, 429 F.3d at 679-80 (noting that although it
would have been desirable for defense counsel to call court’s
attention to its failure to explain discretionary ruling, the
Rules did not require counsel to do so).
III.
We next consider whether the district court erred in deny-
ing defendant’s motion to suppress evidence obtained as a
result of the warrantless search of the stash house. The district
15736 UNITED STATES v. MANCINAS-FLORES
court found that defendant had no legitimate expectation of
privacy in the stash house and that even if he did, the search
was justified by exigent circumstances. We find that exigent
circumstances justified the search and therefore do not decide
whether defendant had a reasonable expectation of privacy in
the stash house.
Whether exigent circumstances justified a warrantless
search is a mixed question of law and fact which we review
de novo. United States v. Russell, 436 F.3d 1086, 1089 n.2
(9th Cir, 2006). However, we review any findings of fact
made by the district court in the course of its determination
for clear error. Id.[12] “ ‘[W]arrants are generally required to search a per-
son’s home or his person unless “the exigencies of the situa-
tion” make the needs of law enforcement so compelling that
the warrantless search is objectively reasonable under the
Fourth Amendment.’ Brigham City, Utah v. Stuart, 547 U.S.
398, 403 (2006) (quoting Mincey v. Arizona, 437 U.S. 385,
393-394 (1978), alteration in Brigham City). “One exigency
obviating the requirement of a warrant is the need to assist
persons who are seriously injured or threatened with such
injury.” Id. Many courts, including this one, have recognized
that an ongoing hostage situation presents exigent circum-
stances. Satchell v. Cardwell, 653 F.2d 408, 411-12 (9th Cir.
1981) (recognizing that exigent circumstances justified war-
rantless entry into home where officer reasonably believed
that woman was being held hostage inside); see also United
States v. Washington, 573 F.3d 279, 288 (6th Cir. 2009) (“In
burglary cases, the possibility that a lawful resident has been
injured or is being held hostage gives rise to exigent circum-
stances.”); United States v. De Jesus-Batres, 410 F.3d 154,
159 (5th Cir. 2005) (exigent circumstances justified warrant-
less search of garage suspected of containing smuggled alien
hostages); United States v. Richards, 937 F.2d 1287, 1291
(7th Cir. 1991) (recognizing that officer does not need a war-
rant to enter the apartment of someone who is holding hos-
UNITED STATES v. MANCINAS-FLORES 15737
tages inside); Montana v. Hammer, 759 P.2d 979, 983-84
(Mont. 1988) (exigent circumstances justified warrantless
entry into home where defendant was holding hostages).
[13] In light of the principle that an ongoing hostage situa-
tion presents exigent circumstances, we find that the search of
the stash house was reasonable. In the original phone call, the
smugglers threatened to kill and rape the hostages if the ran-
som remained unpaid. The smugglers agreed to give family
members until October 10th to pay the ransom before harm-
ing the hostages, but ICE did not locate the stash house until
October 10th, and thus time was running out. Further, testi-
mony at the hearing on the motion to suppress indicated that
the officers’ conclusion that they did not have time to obtain
a warrant once they pinpointed the location of the stash house
was reasonable. Both an ICE agent and a SAU officer testi-
fied about instances in which they waited too long to enter a
stash house, resulting in people being raped or killed.
[14] Defendant argues that even if there were exigent cir-
cumstances, the government should have prepared in advance
to obtain a warrant, and its failure to do so rendered the search
unreasonable. He points out that between October 6, when
ICE learned of the hostage situation, and October 10, when it
located the stash house, ICE took no steps to prepare an appli-
cation for a warrant or ensure that it could obtain a telephone
warrant upon locating the stash house. However, under the
circumstances presented, the government was not required to
anticipate exigent circumstances and prepare in advance to
obtain a warrant.
Our decision in United States v. Couch is instructive. 688
F.2d 599, 603-04 (9th Cir. 1982). In Couch, customs agents
seized a suspected drug smuggler at an airport and detained
him without a warrant for an extended period of time based
on a confidential informant’s tip received the previous day.
Because of the tip, the agents knew the day before that the
smuggler would arrive but made no preparations for obtaining
15738 UNITED STATES v. MANCINAS-FLORES
a warrant. The defendant argued that this failure made his
extended warrantless detention unreasonable. However, this
court rejected his contention, holding that the agents did not
have to prepare to obtain a warrant because they could not
have known one would be needed until the smuggler arrived
at the airport and corroborated the informant’s tip.
[15] Likewise, in the present case, ICE was not required to
predict what would happen during the course of its investiga-
tion. Although ICE hoped that it would locate the hostages
with help from the telephone service provider, the investiga-
tion could have taken a different turn during the days leading
up to the search. Indeed, prior to locating the stash house, ICE
did not even know if the hostages were being held inside a
residence, inside a business, or out in the desert. (ER Vol. II
at 67:17 to 68:6.) Until ICE located the stash house and con-
firmed the hostages’ presence, it did not know that a warrant
would be necessary or what to state in an affidavit. Upon
locating the stash house, the ongoing threat of harm to the
hostages justified an immediate entry. Thus, as in Couch, the
agents in the present case were not required to apply for a
warrant ahead of time or arrange for a telephonic warrant.5
Accordingly, we affirm the district court’s decision to deny
the defendant’s motion to suppress the fruits of the search of
the stash house.
IV.
For the reasons stated, we VACATE the district court’s
rejection of defendant’s guilty plea and REMAND with
instructions that the district court hold a new plea hearing and
allow defendant to plead guilty to the firearm charge pursuant
to the plea agreement. If the court accepts the plea, the court
should sentence defendant in accordance with the plea and
5
We add that we do not rule out the possibility that, under different cir-
cumstances, the failure to prepare a warrant in advance could be found to
negate exigent circumstances.
UNITED STATES v. MANCINAS-FLORES 15739
enter a new judgment. If the court rejects the plea, it must
clearly state its reasons so that we can determine in any subse-
quent appeal whether the court abused its discretion. We
AFFIRM the district court’s denial of defendant’s motion to
suppress.
AFFIRMED in part, VACATED in part, and
REMANDED.
RYMER, Circuit Judge, concurring in part and dissenting in
part:
I would not allow Mancinas-Flores another crack at plead-
ing guilty to the firearm charge. Having offered to enter a
guilty plea, Mancinas-Flores told the judge during the Rule 11
colloquy: “I’m really not guilty.” The judge then stopped the
proceeding. I believe she had discretion to do so because Fed.
R. Crim. P. 11(b)(3) requires a factual basis for a guilty plea.
Cf. In re Vasquez-Ramirez, 443 F.3d 692, 695 & n.4, 700 n.9
(9th Cir. 2006) (holding that a district judge has no discretion
to reject a guilty plea when all the requirements of Rule 11(b)
are met, but does have discretion to reject a guilty plea “when
he feels the plea has failed to meet the Rule 11(b) require-
ments”).
At no point did Mancinas-Flores ask for a recess, a continu-
ance, or an opportunity to explain his response, nor did he
indicate that the court should treat his plea as a nolo con-
tendere plea or as an Alford plea,1 nor did he object at the
1
North Carolina v. Alford, 400 U.S. 25 (1970). As the Tenth Circuit
succinctly explained:
A plea of nolo contendere is “a plea by which a defendant does
not expressly admit his guilt, but nonetheless waives his right to
a trial and authorizes the court for purposes of the case to treat
him as if he were guilty.” An “Alford” plea, named after the
15740 UNITED STATES v. MANCINAS-FLORES
hearing or later that the district court misunderstood his inten-
tions, the nature of his plea, or the law. He did not ask to try
again, or for reconsideration. Now he says he was offering an
Alford plea, but in these circumstances I would decline to
consider a theory about the plea that was nowhere presented
to the district court.
Even assuming that what Mancinas-Flores really wanted to
do was enter an Alford plea — despite the fact he never said
so and did not state at the plea hearing that he was innocent
— the district court had broad discretion to decline to go for-
ward.2 We have made clear that a court is under no obligation
to accept an Alford plea. As we said in United States v.
O’Brien, a court “may accept a guilty plea of one who pro-
tests his innocence, United States v. Alford, but acceptance is
not required.” 601 F.2d 1067, 1069 (9th Cir. 1979) (citation
omitted). Mancinas-Flores suggests that O’Brien is out-of-
date, but O’Brien has never been overruled and indeed, Alford
itself — and Rule 11 — makes the same point. Alford, 400
U.S. at 38 n.11; Fed. R. Crim. P. 11 advisory committee’s
note (1974); Fed. R. Crim. P. 11(a)(1).3
Supreme Court’s decision in North Carolina v. Alford, is a plea
denominated as a guilty plea but accompanied by protestations of
innocence.
United States v. Buonocore, 416 F.3d 1124, 1127 n.2 (10th Cir. 2005)
(citation omitted).
2
Actually, Mancinas-Flores’ “I’m really not guilty” plea was neither a
true Alford plea — where the defendant proclaims his innocence — nor
a true nolo contendere plea —where the defendant does not admit guilt but
accepts the court treating him as guilty for purposes of the particular case.
Mancinas-Flores’ proffer falls somewhere between the two, thus short of
both, for which there is no precedent. If a defendant wants a court to
accept a plea agreement but refuses to admit his own guilt, then he must
navigate the waters of an Alford plea or a nolo plea. Mancinas-Flores
never made that attempt, which is another reason I would adjure the
course taken by the majority.
3
Although a type of guilty plea, the advisory committee notes indicate
that an Alford plea is procedurally treated as a nolo plea. See Fed. R.
UNITED STATES v. MANCINAS-FLORES 15741
Mancinas-Flores argues, and the majority holds, that the
district court’s failure to explain its reasons means that it did
not actually exercise its discretion. I disagree given the record
in this case. Mancinas-Flores neither objected nor sought an
explanation; no doubt it was as obvious to him then, as it is
to me now, that the district court rejected his guilty plea
because he said he really wasn’t guilty. The court could do
this whether his plea is characterized as it was at the time —
an ordinary, “straight-up” guilty plea — or as it is now, a
putative Alford plea. See, e.g., O’Brien, 601 F.2d at 1070(declining to find abuse of discretion in rejecting guilty plea
when a defendant refused to admit guilt); Buonocore, 416
F.3d at 1129-31 (upholding district court’s discretion to adopt
a general policy against Alford or nolo pleas).4 If a district
Crim. P. 11 advisory committee’s note (1974). Rule 11(a)(1) provides that
a defendant may plead nolo contendere only “with the court’s consent.”
The Tenth Circuit so held in Buonocore, 416 F.3d at 1127 n.2, 1129-31,
aligning itself with O’Brien, but the Sixth Circuit took a different view in
United States v. Tunning, 69 F.3d 107, 110-11 (6th Cir. 1995), holding
that Rule 11 imposes no consent requirement akin to Rule 11(a)(1) for
Alford-type guilty pleas. To the extent the majority is influenced by Tun-
ning, see maj. op. at 15726, I believe we are instead bound by O’Brien.
4
As the Tenth Circuit explained in Buonocore:
Secondary sources also provide support for the proposition that
a district court has discretion to reject Alford or nolo pleas based
on a general policy against such pleas. According to Wright and
Miller, “the court is not required to accept a guilty plea from one
who asserts he is innocent.” 1A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure, § 174, at 201-02 (3d
ed. 1999). “It is discretionary with the court whether to accept the
plea and it is wholly unlikely that refusal to accept the plea would
be regarded as error on appeal.” Id. § 177, at 294. According to
the American Law Reports:
One of the most important characteristics of the plea of nolo
contendere, which distinguishes it fundamentally from the
plea of guilty to which it is so frequently linked by the
courts, is that its acceptance by the court is not a matter of
right of the defendant but is entirely within the discretion of
the court.
15742 UNITED STATES v. MANCINAS-FLORES
court may reject an Alford plea as a matter of unarticulated
preference, it follows that the court may do so without articu-
lated reason.5
The reasons an Alford plea is problematic are, in any event,
well recognized. To quote the Advisory Committee to Rule
11:
The defendant who asserts his innocence while
pleading guilty or nolo contendere is often difficult
to deal with in a correctional setting, and it may
therefore be preferable to resolve the issue of guilt or
innocence at the trial stage rather than leaving that
issue unresolved, thus complicating subsequent cor-
rectional decisions. The rule is intended to make
clear that a judge may reject a plea of nolo con-
tendere and require the defendant either to plead not
guilty or to plead guilty under circumstances in
which the judge is able to determine that the defen-
dant is in fact guilty of the crime to which he is
pleading guilty.
All the later cases support the proposition that the plea of
nolo contendere cannot be entered by the defendant as a mat-
ter of right but is pleadable only by leave of court, its accep-
tance by the court being entirely a matter of grace.
89 A.L.R.2d 540, § 14 (emphasis added).
5
Curiously, the majority states that even if Buonocore is right and a dis-
trict court may adopt a policy of refusing to accept all Alford pleas, it must
at least disclose that it has such a policy and that it is rejecting the defen-
dant’s plea pursuant to that policy. Maj. op. at 15728. Here, of course,
there is no indication that the district judge had any such policy. Nor is
there any reason why she should have disclosed her position on Alford
pleas; the word Alford was never mentioned. So we have no call in this
case to opine one way or the other on how district courts ought to conduct
a true Alford hearing. My point in relying on Buonocore (which, in turn,
relied on O’Brien), is that if a district court may reject a real Alford plea
on a blanket basis, it could certainly reject the hybrid plea in this case for
which there is no basis at all.
UNITED STATES v. MANCINAS-FLORES 15743
Fed. R. Crim. P. 11 advisory committee’s note (1974) (quoted
and relied upon in Buonocore, 416 F.3d at 1130). And, as we
said in O’Brien, “ ‘[h]owever legally sound the Alford princi-
ple, which . . . we do not dispute, the public might well not
understand or accept the fact that a defendant who denied his
guilt was nonetheless placed in a position of pleading guilty
and going to jail.’ ” 601 F.2d at 1070 (quoting United States
v. Bednarski, 445 F.2d 364, 366 (1st Cir. 1971)).6
Beyond this, I disagree with the majority’s premise that the
district court might have rejected the plea for improper as well
as proper reasons. Maj. op. at 15728. Rather, I presume that
district judges know the law. See, e.g., United States v. Carty,
520 F.3d 984, 992 (9th Cir. 2008); Walton v. Arizona, 497
U.S. 639, 653 (1990) (“Trial judges are presumed to know the
law and to apply it in making their decisions.”), overruled on
other grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002).
Thus, I presume that the experienced district judge in this case
knew that she could accept a plea accompanied by protesta-
tions of innocence,7 but that she didn’t have to.
I also disagree with the majority’s suggestion that Vasquez-
Ramirez calls into question a district court’s discretion to
reject an Alford plea. Maj. op. at 15728-29. Vasquez-Ramirez
6
What happened at sentencing in this case illustrates why “a judge may
reject a plea of nolo contendere and require the defendant either to plead
not guilty or to plead guilty under circumstances in which the judge is able
to determine that the defendant is in fact guilty of the crime to which he
is pleading guilty.” Fed. R. Crim. P. 11 advisory committee’s note (1974).
Mancinas-Flores personally told the judge that “in no moment did I have
anything to do with those people.” Likewise, his objection to the presen-
tence report states: “Mr. Mancinas-Flores maintains his plea of innocense
and denies the allegations of the Indictment. Mr. Mancinas-Flores ada-
mantly disputes the jury’s findings of guilt. Based on his continuing plea
of innocense, Mr. Mancinas-Flores holds that the statements of the wit-
nesses, whether under oath or in the pre-sentence report, are false.”
7
To repeat, Mancinas-Flores did not state at the plea hearing that he was
innocent.
15744 UNITED STATES v. MANCINAS-FLORES
concerned a routine guilty plea in which the defendant admit-
ted guilt, unlike this case where Mancinas-Flores tried to enter
a guilty plea while insisting that he is “really not guilty,” or
a typical Alford plea where the defendant asserts his inno-
cence but is nevertheless willing to accept punishment and
there is “strong evidence of actual guilt,” Alford, 400 U.S. at
37. Vasquez-Ramirez does not purport to speak to the situa-
tion in this case, or to an Alford plea. See 443 F.3d at 694-95.
Indeed, Vasquez-Ramirez cites O’Brien with approval for the
proposition that “[a] trial court has discretion to accept or
reject a guilty plea . . . of one who protests his innocence.” Id.at 700 (citing and quoting O’Brien, 601 F.2d at 1069).
Finally, even if the district judge erred by failing to give
reasons, I would simply remand for the court to explicate its
ruling. In all the circumstances of this case, including that
Mancinas-Flores went to trial without giving the district court
any notice of any objection, I see no need for letting him go
back to square one (now that he knows the result of trial and
sentencing) without first allowing the district court the oppor-
tunity to cure the deficiencies Mancinas-Flores and this court
have identified which, had they been timely identified, the
court could have done to begin with.
Accordingly, I dissent from Part II, though I concur in Part
III.