United States v. Jose Lopez ( 2013 )

FILED
NOT FOR PUBLICATION MAY 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10134
Plaintiff - Appellee, D.C. No. 4:11-cr-03234-RCC-
BPV-1
v.
JOSE MANUEL LOPEZ, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted May 16, 2013
San Francisco, California
Before: McKEOWN and WATFORD, Circuit Judges, and ZILLY, Senior District
Judge.**
Although the Government made a favorable plea offer, defendant Jose
Manuel Lopez pleaded guilty without entering into any agreement with the
Government, and received a sentence 18 months higher than the one proposed by
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9 th Cir. R. 36-3.
**
The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
the Government. As a result of a recording equipment malfunction, no transcript
of the change of plea hearing is available. These unusual facts form the basis for
defendant’s appeal.
The absence of a transcript or suitable recording of the plea proceedings
constitutes a violation of Federal Rule of Criminal Procedure 11(g). Contrary to
the Government’s assertion, this Rule 11(g) violation is not analyzed under the
Court Reporter Act, specifically 28 U.S.C. § 753(b), but rather is subject to
harmless error review. See Fed. R. Crim. P. 11(h). Under a harmless error
analysis, the Government bears the burden of establishing that the Rule 11
transgression had no effect on defendant’s substantial rights. E.g., United States v.
Jimenez-Dominguez, 296 F.3d 863, 866 (9th Cir. 2002). The Government has not
satisfied this burden.
Absent a verbatim recording of the plea proceedings, it is not possible to
assess whether the requirements of Rule 11 were met. Contrary to the
Government’s contention, the Magistrate Judge’s Findings and Recommendation
are not an adequate substitute for a transcript of the change of plea hearing. The
Findings and Recommendation recite some, but not all, of the matters outlined in
Rule 11(b), provide no specifics concerning any applicable mandatory minimum or
maximum penalties, and indicate that the sentencing guidelines “apply” when, in
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fact, they are only advisory, see United States v. Booker, 543 U.S. 220, 245 (2005).
Given the Government’s inability to demonstrate that the Rule 11(g) violation was
harmless, defendant is “entitled to plead anew.” McCarthy v. United States, 394
U.S. 459, 463 (1969). We therefore vacate both the judgment and the guilty plea,
and remand this matter to the district court for further proceedings.
VACATED and REMANDED.
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