United States v. Monzon

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-30497
Plaintiff-Appellee,
v.  D.C. No.
CR 02-0374-23 JCC
ALBERTO MONZON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted
July 14, 2005—Seattle, Washington
Filed December 7, 2005
Before: A. Wallace Tashima, Richard A. Paez, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Callahan
15783
15786 UNITED STATES v. MONZON
COUNSEL
Catherine L. Floit, Seattle, Washington, for the defendant-
appellant.
John McKay, United States Attorney, and Douglas B. Whal-
ley, Assistant United States Attorney, Seattle, Washington,
for the plaintiff-appellee.
OPINION
TASHIMA, Circuit Judge:
Alberto Monzon appeals his conviction for possession of a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c). Monzon contends that the district court
accepted his guilty plea in violation of Rule 11 of the Federal
Rules of Criminal Procedure and that the error affected his
substantial rights. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we reverse.
BACKGROUND
In November 2001, law enforcement officers began investi-
gating a drug trafficking organization led by Juan Godinez-
Vasquez. Through a court-authorized wiretap, officers deter-
mined that Monzon was involved with that organization. Fed-
eral agents executed a search warrant at Monzon’s residence.
Monzon was in bed at the time. The agents seized a loaded
9-millimeter semi-automatic handgun from under the bed-
UNITED STATES v. MONZON 15787
covers, $3,060 in cash from a coat in the closet, and 248.9
grams of heroin in an Enfamil baby formula can wrapped in
electrical tape from the closet shelf.
Monzon was charged in three counts of a multi-count
indictment with: (1) Count 1, conspiracy to distribute cocaine,
heroin, and methamphetamine; (2) Count 20, possession of
heroin with intent to distribute, in violation of 21 U.S.C.
§ 812; and (3) Count 21, possession of a firearm in further-
ance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1). Count 21 alleged that Monzon “knowingly and
intentionally did possess a firearm, that is, a Pietro Beretta
9mm model 91 handgun, in furtherance of a drug trafficking
crime, that is, possession of heroin with intent to distribute, as
charged in Count 20, and conspiracy to distribute cocaine,
heroin, and methamphetamine, as charged in Count 1.”
At one point, Monzon moved to have his counsel, Michael
Danko, discharged and to have his originally appointed coun-
sel re-appointed. According to the motion, Monzon had twice
indicated that he intended to accept the government’s plea
offer, but the first time, changed his mind during the plea col-
loquy, and the second time, decided he was not going to enter
a plea upon arriving in court. The motion explained that com-
munication between Monzon and Danko had broken down. At
the hearing on the motion, the court reasoned that, if the court
again permitted a change of counsel, the new attorney would
be unprepared for trial, which was scheduled to commence
the following week. It therefore denied Monzon’s request for
new counsel.
Monzon then entered a guilty plea to Counts 20 and 21 of
the indictment: possession of heroin with intent to distribute,
and possession of a firearm in furtherance of a drug traffick-
ing crime. Count 1, the conspiracy count, was dismissed. At
the plea hearing, conducted by a Magistrate Judge, Danko
explained that his latest discussions with Monzon had been
“amicable and complete” and that Monzon intended to go
15788 UNITED STATES v. MONZON
ahead with the guilty plea. The government summarized the
charges and penalties, stating that Count 20 carried a term of
imprisonment of not less than five and up to 40 years, and that
Count 21 required a term of imprisonment of not less than
five years, to be served consecutively. Monzon stated that he
understood the two charges and their maximum penalties.
The Magistrate Judge advised Monzon that, if there were
a trial on Count 21, the government would be required to
prove that Monzon commited a drug trafficking offense and
that Monzon knowingly possessed a firearm in furtherance of
the drug trafficking offense. Monzon stated that he under-
stood the elements of the offenses charged. The Magistrate
Judge then asked Monzon if he understood that by pleading
guilty, he would be giving up his right to require the govern-
ment to prove those elements, and Monzon said that he did.
The Magistrate Judge asked, “Is that what you wish to do?”
Monzon replied, “Yes.”
Next, the Magistrate Judge conducted a colloquy to deter-
mine whether Monzon agreed to the facts stated in the plea
agreement. The following exchange occurred between the
Magistrate Judge, Monzon, and Assistant United States Attor-
ney Douglas Whalley:
Court: Did they come into your house in the
nighttime or sometime on November 6
of 2002 and search your house?
Defendant: Yes.
Court: And at that time did they find in your
bedroom 248.9 grams of heroin?
Defendant: Yes.
Court: Did they also find a loaded Beretta,
nine-millimeter, semiautomatic hand-
UNITED STATES v. MONZON 15789
gun in the bed where you were sleep-
ing?
Defendant: Yes.
Court: Did you in fact possess that firearm in
part to protect those drugs?
Defendant: No. That’s not it. I just had it because
somebody sold it to me cheap.
Court: Mr. Whalley, what would the govern-
ment’s evidence show on the use of
the firearm in connection with the
offense?
Whalley: Simply that he had it in his possession
in the bedroom with the drugs. That
phrase is more a legal conclusion than
it is a finding of fact, Your Honor, so
I’m willing to accept the plea without
item B, why he protected it, why he
possessed it.
Court: Are you suggesting we strike that from
the plea agreement?
Whalley: If the defendant does not admit it.
Court: Mr. Monzon, why did you feel that
you needed or wanted to have a fire-
arm?
Defendant: Because I always liked them and they
sold it to me for cheap and, you know,
I just bought it. I didn’t buy it because
of the drugs. It doesn’t have anything
to do with that.
15790 UNITED STATES v. MONZON
Court: Mr. Whalley, maybe we better strike
that. Any objection, Mr. Danko?
Danko: No, Your Honor.
Court: Mr. Monzon, is it true that the drugs
were in your bedroom and the gun was
also in your bedroom?
Defendant: Yes.
The plea agreement was then amended by deleting the sen-
tence that stated: “(b) Defendant possessed the firearm in part
to protect the drugs.” As amended, the plea agreement’s state-
ment of facts stated only:
(a) On November 6, 2002, law enforcement agents
executed a search warrant at Defendant’s residence.
. . . In the bedroom, where Defendant was found
sleeping, agents recovered 248.9 grams of heroin.
Agents also recovered a loaded Beretta 9 mm semi-
automatic handgun in the bed where Defendant was
sleeping.
(c) The parties agree, and will recommend that the
Court find, that the amount of heroin involved in the
offense was 248.9 grams of heroin.
Monzon then pled guilty to Counts 20 and 21. The Magis-
trate Judge found that Monzon’s guilty plea was knowing and
voluntary and was “supported by an independent basis in
fact,” and set a date for sentencing before the district court.
The district court entered an order accepting Monzon’s plea
and sentenced Monzon to a 120-month term of imprisonment
and four years of supervised release. This timely appeal fol-
lowed.
UNITED STATES v. MONZON 15791
STANDARD OF REVIEW
When a defendant fails to object to a district court’s
asserted Rule 11 error, our review is limited to plain error.
Fed. R. Crim. P. 52(a)-(b); United States v. Dominguez
Benitez, 124 S. Ct. 2333, 2338 (2004). In assessing the effect
of Rule 11 error, we must look to the entire record and not to
the plea proceedings alone. The error requires reversal only if
it affected the defendant’s substantial rights. Id. We exercise
our discretion to correct the error only if it “seriously affects
the fairness, integrity or public reputation of judicial proceed-
ings.” United States v. Olano, 507 U.S. 725, 732 (1993).
ANALYSIS
On appeal, Monzon first contends that the district court vio-
lated Rule 11 of the Federal Rules of Criminal Procedure by
failing to establish a factual basis for his guilty plea to posses-
sion of a gun in furtherance of a drug trafficking crime and
in failing to ensure that he understood the charge against him
and that the plea was voluntary. Monzon further argues that
the Rule 11 error is not harmless because it affected his sub-
stantial rights. Second, Monzon contends that, in the absence
of a conviction for possession of a gun in furtherance of a
drug trafficking crime, he would be eligible for a safety valve
reduction in his sentence pursuant to 18 U.S.C. § 3553(f).
I. Rule 11 Error
[1] The government concedes that the district court erred
by failing to determine that there was a factual basis for Mon-
zon’s guilty plea to possession of a gun in furtherance of a
drug trafficking crime.1 Because the government concedes
1
In its brief, the government states:
Count 21 charged Monzon with possession of a firearm in fur-
therance of a drug trafficking crime. The modified Plea Agree-
15792 UNITED STATES v. MONZON
that the district court’s acceptance of Monzon’s plea in viola-
tion of Rule 11 was plain error, we proceed to the issue of
whether the error affected Monzon’s substantial rights.
To obtain reversal of a conviction based on Rule 11 error,
the defendant must show, based on the entire record, that the
error affected his substantial rights. Dominguez Benitez, 124
S. Ct. at 2338-39. The defendant “must show a reasonable
probability that, but for the error, he would not have entered
the plea.”2 Id. at 2340. “A defendant must thus satisfy the
judgment of the reviewing court, informed by the entire
record, that the probability of a different result is sufficient to
undermine confidence in the outcome of the proceeding.” Id.
(internal quotation marks and citations omitted). “The
reasonable-probability standard is not the same as, and should
not be confused with, a requirement that a defendant prove by
a preponderance of the evidence that but for error things
would have been different.” Id. at 2340 n.9.
[2] In Dominguez Benitez, the Court explained that, to
determine whether the Rule 11 error affected the defendant’s
substantial rights, we should consider “record evidence tend-
ment did not provide a complete factual bases in support of
Monzon’s plea of guilty to Count 21, although it came very close
through Monzon’s admissions that he possessed one-quarter kilo-
gram of heroin in his bedroom, and slept with a 9 mm Berretta
sem-automatic handgun in his bed in the same room. ER 34-35.
The error here is plain. However, the court’s failure to meet this
Rule 11(a)(3) requirement does not require reversal of the con-
viction by entitling Monzon to withdraw his plea.
2
Prior to the Supreme Court’s decision in Dominguez Benitez, we
required defendants seeking reversal based on a Rule 11 error to prove
only “that the court’s error was not minor or technical and that he did not
understand the rights at issue when he entered his guilty plea.” See 124
S. Ct. at 2338 (citing United States v. Dominguez Benitez, 310 F.3d 1221,
1225 (9th Cir. 2000)). In Dominguez Benitez, the Supreme Court over-
ruled that standard and held that the reasonable probability standard
applies. Id. at 2341-42.
 UNITED STATES v. MONZON 15793
ing to show that a misunderstanding was inconsequential to a
defendant’s decision, or evidence indicating the relative sig-
nificance of other facts that may have borne on his choice
regardless of any Rule 11 error.” Id. at 2341 (citation omit-
ted).
[3] The inquiry shall include “the overall strength of the
Government’s case and any possible defenses that appear
from the record.” Id. The Court further explained:
The point of the question is not to second-guess a
defendant’s actual decision; if it is reasonably proba-
ble he would have gone to trial absent the error, it is
no matter that the choice may have been foolish. The
point, rather, is to enquire whether the omitted warn-
ing would have made the difference required by the
standard of reasonable probability. . . .
Id.3
[4] Unlike in Dominguez Benitez, where the Court reasoned
3
We have applied Dominguez Benitez only once before in a published
opinion. In United States v. Arellano-Gallegos, 387 F.3d 794 (9th Cir.
2004), the defendant challenged the waiver of appeal provision in his plea
agreement. Id. at 796. We concluded that the district court violated Rule
11 by failing to ascertain whether the defendant’s waiver of appeal was
knowing and voluntary before acceptance of the plea. Id. at 797. We also
cited to Dominguez Benitez and reasoned that “there is no evidence in the
record that would demonstrate that Arellano knew he was waiving the
right to appeal his sentence.” Id. We observed that “[w]hat is in the record
demonstrates that the magistrate judge and the form used by the district
court omitted any reference to the right to appeal the sentence.” Id. We
also reasoned that, “[b]ecause this was not a technical violation of Rule
11, but rather a wholesale omission, and there is nothing elsewhere in the
record to indicate that Arellano understood the right to appeal his sen-
tence, his substantial rights were affected.” Id. We have not heretofore
applied Dominguez Benitez in a Rule 11 context in which a defendant con-
tends that he was not sufficiently apprised of the elements of the offense
to which he is pleading guilty.
15794 UNITED STATES v. MONZON
that “it is hard to see here how the warning could have had
an effect on Dominguez’s assessment of his strategic posi-
tion,” 124 S. Ct. at 2341, the omission here likely affected
Monzon’s assessment of his strategic position. We have held
that “[e]vidence that a defendant merely possessed a firearm
at a drug trafficking crime scene, without proof that the
weapon furthered an independent drug trafficking offense, is
insufficient to support a conviction under § 924(c).” United
States v. Krouse, 370 F.3d 965, 967 (9th Cir. 2004). The “in
furtherance” element of the offense “turns on the intent of the
defendant.” Id. Conviction requires “proof that the defendant
possessed the weapon to promote or facilitate the underlying
crime.” Id. See also United States v. Mann, 389 F.3d 869, 880
(9th Cir. 2004) (observing that “Congress has not made mere
possession, when it occurs contemporaneously with drug
manufacture, a strict liability crime”).
[5] Here, once amended, the statement of facts in the plea
agreement provided only that agents found 248.9 grams of
heroin in the bedroom where Monzon was sleeping and a
loaded gun in Monzon’s bed. The plea agreement included no
statement of Monzon’s intent in possessing the gun. Indeed,
Monzon specifically objected when the district court asked
him if he in fact possessed the gun in part to protect the drugs
found in his bedroom: “No. That’s not it. I just had it because
somebody sold it to me cheap.” When asked to explain why
he had the gun, Monzon explained, “Because I always liked
them and they sold it to me for cheap and, you know, I just
bought it. I didn’t buy it because of the drugs. It doesn’t have
anything to do with that.”
[6] Under Krouse, the mere fact of Monzon’s possession of
the gun at the scene of the drug trafficking crime is insuffi-
cient to support the “in furtherance” element. See Krouse, 370
F.3d at 967. Unlike in Dominguez Benitez, where the defen-
dant’s plea to drug possession was supported by evidence of
a controlled drug sale to an informant and a confession, see
124 S. Ct. at 2341, it is unclear whether the government
UNITED STATES v. MONZON 15795
would have been able to prove the “in furtherance” element
beyond a reasonable doubt at trial, especially given Monzon’s
explanation of his reason for possessing the gun. And, unlike
in Dominguez Benitez, where the Court observed that, given
the evidence, “one can fairly ask a defendant seeking to with-
draw his plea what he might ever have thought he could gain
by going to trial,” id., it appears that Monzon might have been
able to avoid conviction on the § 924(c) charge had he gone
to trial.
Further, it appears that Monzon was unaware that the
amended statement of facts he agreed to was insufficient to
support the “in furtherance” element of 18 U.S.C. § 924(c).
The Magistrate Judge did not inform Monzon that the state-
ment of facts did not demonstrate all the elements of the
§ 924(c) charge, and it appears that Dominguez’s counsel, in
recommending that Monzon accept the plea agreement, also
was unaware of the insufficiency of the factual basis. Thus,
neither Monzon nor his attorney, nor indeed the Assistant
United States Attorney or the district court, understood — as
the government now concedes — that there was no factual
basis for Monzon’s plea and that the government’s evidence,
if presented at trial would show “[s]imply that he had [the
gun] in his possession in the bedroom with the drugs.” As in
Arellano-Gallegos, 387 F.3d at 797, “there is nothing else-
where in the record” to indicate that Monzon understood that
the evidence might not support the § 924(c) charge.
[7] Given the evidence in the record of Monzon’s prior
equivocation in deciding whether to accept the plea agree-
ment, and given the absence of evidence showing that Mon-
zon intended to possess the gun “in furtherance” of his drug
trafficking crime, it is reasonably probable that Monzon
would have gone to trial on the § 924(c) charge absent the
Rule 11 error. A review of the entire record shows a reason-
able probability of a different result, “sufficient to undermine
confidence in the outcome of the proceeding.” Dominguez
Benitez, 124 S. Ct. at 2340. The Rule 11 error here “seriously
15796 UNITED STATES v. MONZON
affects the fairness, integrity or public reputation of judicial
proceedings.” Olano, 507 U.S. at 732. We therefore reverse
Monzon’s conviction for violation of 18 U.S.C. § 924(c) and
remand with instructions to vacate Monzon’s plea and sen-
tence, and to afford Monzon the opportunity to enter a new
plea.
2. Safety Valve Reduction in Sentencing
Monzon contends that, absent a conviction for possession
of a gun in furtherance of a drug trafficking crime, he would
be eligible for a safety valve reduction in his sentence pursu-
ant to 18 U.S.C. § 3553(f). Because Monzon was convicted of
the gun charge, he did not raise, and the district court did not
consider, application of the safety valve provision under 18
U.S.C. § 3553. We therefore decline to reach this issue. Upon
remand, the district court will have the opportunity to con-
sider in the first instance whether to apply the safety valve
provision.
CONCLUSION
The district court’s Rule 11 error affected Monzon’s sub-
stantial rights because there is a reasonable probability that,
absent the error, Monzon would not have pleaded guilty to the
§ 924(c) charge. The judgment of conviction on Count 21 is
reversed and the case is remanded to the district court for fur-
ther proceedings consistent with this opinion. Further,
because the sentencing court should “be free to consider any
matters relevant to sentencing,” we vacate the sentence as to
Count 20 and remand that count for resentencing. See United
States v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en
banc).
REVERSED and REMANDED.
UNITED STATES v. MONZON 15797
CALLAHAN, Circuit Judge, dissenting:
I respectfully dissent.
The majority properly frames the issue before us. In order
to obtain a reversal of conviction, Monzon must show a rea-
sonable probability that but for the district court’s Rule 11
error, he would not have pled guilty to Count 21. Dominguez
Benitez, 124 S. Ct. at 2338-39. Based on Monzon’s prior
equivocation in accepting the plea agreement and the absence
of evidence to support the “in furtherance” element of Count
21, the majority concludes it is reasonably probable that Mon-
zon would have gone to trial on Count 21 and, therefore, finds
reversible error. I disagree with the majority’s premises and
conclusion.
The majority assumes that if Monzon had wanted to pro-
ceed to trial on Count 21, the government would have allowed
him to do so without disturbing the dismissal of Count One
and his guilty plea to Count 20. This simply ignores the nature
of the plea-bargain process. In exchange for Monzon’s guilty
plea to both Counts 20 and 21, the government dismissed
Count One, which carried a ten year mandatory sentence. A
conviction on all three counts would have resulted in a man-
datory minimum prison sentence of 15 years. Thus, by enter-
ing a plea agreement, Monzon avoided the possibility of five
additional years in prison if convicted on Count One, while
the government secured a conviction on Counts 20 and 21. It
is simply unreasonable to assume that the government would
have agreed to dismiss Count One in exchange for just one
guilty plea (Count 20), and then proceed to trial on Count 21
alone.
Moreover, although Monzon claimed that but for the con-
viction on Count 21 he would be eligible for a safety-valve
reduction in his sentence, his admitted possession of a firearm
in conjunction with the drug offense arguably prevents him
from qualifying. Title 18 U.S.C. § 3553; United States v. Nel-
15798 UNITED STATES v. MONZON
son, 222 F.3d 545 (9th Cir. 2000); U.S. SENTENCING GUIDE-
LINES MANUAL § 5C1.2(a)(2). In my view, this considerably
weakens Monzon’s claim that he suffered prejudice as a result
of the district court’s Rule 11 error. Given these consider-
ations, I would not find reversible error in this case.
Even if there were reversible error, the appropriate remedy
would be to place the parties in the same position that they
were in before entering the original plea agreement. Thus,
Monzon should be allowed to withdraw his plea in its entirety
and either proceed to trial on all three counts or attempt to
negotiate a new plea agreement with the government. The
majority’s remedy effectively dismantles the plea agreement,
parses out for remand the conviction on Count 21 and the sen-
tence on Count 20, and leaves intact the dismissal of Count
One. This permits Monzon to enjoy the benefits of the origi-
nal plea agreement, while forcing the government to re-
negotiate new terms from a weaker bargaining position. I do
not read Dominguez Benitez to require this sort of windfall
remedy for plain error under Rule 11.