United States v. Jose Dominguez-Mejia

FILED
NOT FOR PUBLICATION FEB 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50488
Plaintiff - Appellee, D.C. No. 3:10-cr-02341-JM-1
v.
MEMORANDUM*
JOSE REFUGIO DOMINGUEZ-MEJIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Submitted February 5, 2013**
Pasadena, California
Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.
Defendant Jose Dominguez-Mejia appeals his conviction and sentence
following a guilty plea to attempted illegal reentry after deportation under 8 U.S.C.
§ 1326. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo whether a defendant was denied the right to conflict-free
representation. United States v. Baker, 256 F.3d 855, 859 (9th Cir. 2001). We also
review de novo whether a defendant’s guilty plea was voluntary. United States v.
Navarro-Botello, 912 F.2d 318, 320 (9th Cir. 1990). We review for plain error
Dominguez’s claim that the district court’s plea colloquy violated Federal Rule of
Criminal Procedure 11. United States v. Barraqan-Espinoza, 350 F.3d 978, 982
(9th Cir. 2003). Plain-error review in the Rule 11 context requires the defendant to
“show 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).
First, Dominguez’s attorney at the plea hearing did not have a conflict of
interest. A conflict of interest is “the existence of competing interests potentially
affecting counsel’s capacity to give undivided loyalty to his client’s interests.”
United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998). Here, Dominguez
concedes that his attorney acted in good faith and solely in Dominguez’s interests.
There was therefore no conflict of interest. See id. The fact that Dominguez’s
attorney assisted him in entering a voluntary guilty plea does not create a conflict.
Second, Dominguez’s guilty plea was knowing and voluntary. “A plea is
voluntary if it represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” United States v. Kaczynski, 239 F.3d
2
1108, 1114 (9th Cir. 2001) (internal quotation marks omitted). We reject
Dominguez’s contention that a purported conflict of interest with his attorney
rendered his plea involuntary. Moreover, under the totality of the circumstances,
Dominguez’s guilty plea was knowing and voluntary. See id. Dominguez was
advised by counsel and had the assistance of a Spanish language interpreter. The
court clearly instructed him on the elements of the offense, which he
acknowledged. There is no evidence that he was confused or coerced.
The plea colloquy also satisfied Rule 11(b)(1)(G), which requires the court
to inform the defendant of “the nature of each charge to which the defendant is
pleading.” Dominguez argues that the colloquy was inadequate because the judge
read the elements of the offense to him and he merely acknowledged that he
understood them. But Dominguez has cited no applicable authority requiring that a
defendant describe the crime in his own words.
Finally, the plea colloquy satisfied Rule 11(b)(3), which requires the court to
“determine that there is a factual basis for the plea.” Dominguez’s attorney recited
the facts underlying the offense, and Dominguez agreed that the facts were stated
correctly. Dominguez acknowledged that he approached the port of entry and
presented his former permanent-resident card — knowing it was invalid — with
the intent to reenter the country without government consent. This description
3
provided a factual basis for the essential elements of a § 1326 offense. See United
States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc); United
States v. Mancinas-Flores, 588 F.3d 677, 682 (9th Cir. 2009) (“[A] court . . . may
conclude that a factual basis exists from anything that appears on the record.”
(internal quotation marks omitted)).
AFFIRMED.
4