United States v. Delcia Arqueta-Ramos

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10618
Plaintiff-Appellee,
D.C. No.
v. 4:10-cr-00056-RCC-1
DELCIA ARQUETA-RAMOS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
July 10, 2013—San Francisco, California
Filed September 20, 2013
Before: Ferdinand F. Fernandez, Richard A. Paez,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Paez
2 UNITED STATES V. ARQUETA-RAMOS
SUMMARY*
Criminal Law
The panel vacated a conviction for illegally entering the
United States and remanded in a case in which the defendant
pled guilty during an “Operation Streamline” proceeding for
the taking of pleas en masse.
The panel held that although the district court did not err
under Fed. R. Crim. P. 11(b)(1) by advising the defendants of
their rights en masse, it erred by not questioning the
defendant individually to ensure that she understood her
rights. The panel held that questioning defendants in groups
of five – collectively asking each group several questions to
ascertain whether the defendants understood their rights and
consequences of their pleas, and accepting “all answer yes”
and “all answer no” responses to these questions – cannot
render the court’s general advisement sufficiently personal so
as to satisfy Rule 11(b)(1).
The panel concluded that the government did not carry its
burden of proving that the defendant would have pleaded
guilty even without the Rule 11 error.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ARQUETA-RAMOS 3
COUNSEL
Saul M. Huerta (argued), Assistant Federal Public Defender,
and Jon M. Sands, Federal Public Defender, Tucson, Arizona,
for Defendant-Appellant.
Wilbert L. Rocker, Jr. (argued), Special Assistant United
States Attorney, John S. Leonardo, United States Attorney,
and Christina M. Cabanillas, Appellate Chief, Tucson,
Arizona, for Plaintiff-Appellee.
OPINION
PAEZ, Circuit Judge:
Defendant Delcia Arqueta-Ramos appeals her conviction
for illegally entering the United States, in violation of
8 U.S.C. § 1325(a)(1). She pled guilty to this offense during
an “Operation Streamline” proceeding, which is “‘a
procedure for the taking of pleas en masse.’” United States
v. Escamilla-Rojas, 640 F.3d 1055, 1058 (9th Cir. 2011), cert.
denied, 133 S. Ct. 101 (2012) (quoting United States v.
Roblero-Solis, 588 F.3d 692, 693 (9th Cir. 2009)).
On appeal, Arqueta-Ramos argues that the plea
proceeding violated Federal Rule of Criminal Procedure
11(b)(1), which requires the court to “address the defendant
personally in open court.” Fed. R. Crim. P. 11(b)(1). Under
Rule 11, the court must both “inform the defendant of” her
pre-trial and trial rights “and determine that the defendant
understands” those rights. Id. at (A)–(N). We conclude that,
although the court did not err by advising the defendants of
their rights en masse, it erred by not questioning Arqueta-
4 UNITED STATES V. ARQUETA-RAMOS
Ramos individually to ensure that she understood her rights.
See Escamilla-Rojas, 640 F.3d at 1060.
We further conclude that the government has not carried
its burden of proving “that [Arqueta-Ramos] would have
pleaded guilty even without the Rule 11 error.” Id. at 1061;
see also Fed. R. Crim. P. 11(h). We therefore vacate
Arqueta-Ramos’s conviction and remand for further
proceedings consistent with this opinion.
I. BACKGROUND
On December 29, 2009, the government charged Arqueta-
Ramos with illegally entering the United States, a
misdemeanor. See 8 U.S.C. § 1325(a)(1). She pled guilty to
this offense during an “Operation Streamline” group plea
proceeding that same day. Operation Streamline is a program
established by the United States Department of Justice that
“requires criminal prosecution and imprisonment of all
individuals unlawfully crossing the border.” In re Approval
of Judicial Emergency Declared in Dist. of Ariz., 639 F.3d
970, 974 (9th Cir. 2011). The program has “eliminated the
discretion traditionally reserved by United States Attorney’s
offices,” resulting in “a burgeoning number of federal
criminal prosecutions in all districts bordering Mexico,”
especially the United States District Court for the District of
Arizona. Id.“To accommodate the enormous number of prosecutions”
that must take place under Operation Streamline, the District
of Arizona “has adopted a procedure for the taking of pleas
en masse intended to preserve the rudiments of [Federal Rule
UNITED STATES V. ARQUETA-RAMOS 5
of Criminal Procedure] 11 and the [C]onstitution.” Roblero-
Solis, 588 F.3d at 693.1 As we have previously explained,
In Operation Streamline proceedings, a
magistrate judge is assigned to preside over a
group hearing of fifty to seventy defendants
charged with petty misdemeanor violations of
illegal entry. The hearing combines the
defendants’ initial appearances, guilty pleas,
and sentencing hearings into one proceeding.
United States v. Aguilar-Vera, 698 F.3d 1196, 1198 (9th Cir.
2012) (internal quotations marks and citation omitted); see
also Roblero-Solis, 588 F.3d at 694.
At this particular hearing, the magistrate judge took a roll
call of sixty-six defendants, including Arqueta-Ramos, who
were present “for initial appearance, possible change of plea
and sentencing.”2 Transcript of Proceedings, Initial
Appearance, Change of Plea and Sentencing, United States v.
Arqueta-Ramos, No. 09-37497MP (D. Ariz. Dec. 29, 2009),
ECF No. 14.3 The defendants were represented by fifteen
1
Arqueta-Ramos does not argue that the plea proceeding in this case
violated her constitutional rights. Cf. United States v. Diaz-Ramirez,
646 F.3d 653, 658 (9th Cir. 2011) (holding that under plain error review,
the en masse Operation Streamline plea proceeding did not violate the
defendants’ Fifth Amendment due process rights), cert. denied, 133 S. Ct.
101 (2012).
2
The judge also continued one case and dismissed four cases at the
beginning of the hearing.
3
All subsequent references and quotations to this hearing are taken from
this document.
6 UNITED STATES V. ARQUETA-RAMOS
different lawyers, each of whom represented between three
and five defendants. During the roll call, Arqueta-Ramos
requested a hearing outside of the en masse proceeding on the
ground that the proceeding did not comply with Rule 11. The
judge denied the request.
The judge then collectively addressed the group of sixty-
three defendants.4 She asked them to “please stand” if they
were “having trouble hearing through [their] headphones.”
No one stood. The judge then explained,
I’m going to start by addressing all of you as
a group, and then I will call you and your
attorneys up five at a time to speak to you
more individually about your case.
If at any time during this proceeding you
don’t understand, and would like your
attorney to approach and speak with you,
please stand up, and let me know right away,
I’ll stop the proceedings and have you consult
with your attorney.
The judge then advised the defendants of their pre-trial and
trial rights. First, the judge informed the defendants that they
had the right to be represented by a court-appointed attorney
if they could not afford their own. She then stated that each
defendant had been given an attorney before the hearing and
asked the defendants to “please stand” if they were not given
4
During the roll call, the judge agreed to handle three of the sixty-six
cases separately, given the defendants’ limited knowledge of Spanish.
She ultimately dismissed these cases because the defendants were unable
to understand their attorney.
UNITED STATES V. ARQUETA-RAMOS 7
sufficient time to meet with their attorneys. No defendant
stood. Second, the judge informed the defendants that they
had a right to remain silent, but would give up that right if
they pled guilty. She asked “anyone [who] does not
understand this right [to] please stand”; no one stood. Third,
the judge informed the defendants that “[t]he maximum
penalties for illegal entry are six months in prison and a fine
of $5,000.” Fourth, the judge informed the defendants that if
they pled guilty they would have a criminal conviction on
their records. She further explained that, after serving their
sentences, the defendants would be deported, not just
voluntarily returned, to their native countries, and that, if they
illegally re-entered the United States again, they could be
charged with a felony and serve years in prison. Fifth, the
judge explained that the defendants who had entered into
written plea agreements were waiving their right to appeal,
and the defendants who had not signed such agreements
would have fourteen days to file a notice of appeal. The
judge then explained what rights the defendants would have
if they decided to proceed to trial.
After informing the defendants of their rights, the judge
said “I’m now going to call those of you that do not have plea
agreements up in groups of five with your attorney, and ask
you more specific questions.”5 The judge called ten such
groups; Arqueta-Ramos was in the eighth group called, along
with four other defendants. The following exchange took
place among the judge, the defendants, and the attorneys:
5
The judge later called forward defendants with plea agreements, also
in groups of five.
8 UNITED STATES V. ARQUETA-RAMOS
Court: Counsel, do each of you believe that
your clients are competent to plead and are
pleading voluntarily?
All answer yes.
Court: Do each of you believe that your
clients understand the penalties they’re facing
and the rights they’re giving up?
All answer yes.
Court: Do any of the defendants feel
threatened or forced to plead guilty?
Interpreter: All answer no.
Court: Do each of you understand the
maximum penalties?
Interpreter: All answer yes.
Court: Do each of you understand your right
to a court trial?
Interpreter: All answer yes.
Court: Do each of you wish to waive this right
and plead guilty?
Interpreter: All answer yes.
Court: Do each of you understand your right
to appeal?
UNITED STATES V. ARQUETA-RAMOS 9
Interpreter: All answer yes.
Court: Are any of you citizens of the United
States?
Interpreter: All answer no.
Court: Did each of you enter the United States
during the last seven days?
Interpreter: All answer yes.
Court: Did each of you enter near the cities of
Nogales, Sasabe or Douglas?
Interpreter: All answer yes.
Court: Did each of you – did any of you enter
at a designated port of entry in one of these
cities?
Interpreter: All answer no.
Court: Did any of you have legal
authorization to be in the United States?
Interpreter: All answer no.
...
Court: Miss Arqueta-Ramos, how do you
plead, guilty or not guilty?
Defendant: Guilty.
10 UNITED STATES V. ARQUETA-RAMOS
Immediately after this colloquy, Arqueta-Ramos renewed her
objection that the proceeding violated Rule 11. Her attorney
argued that “Rule 11 requires that the [c]ourt address
individuals personally,” explaining that the objection was
“not to what the [c]ourt said specifically,” but rather “to the
process as a whole,” which “does not allow for individuals to
be seen personally by the [c]ourt.” The judge rejected
Arqueta-Ramos’s argument, entered a judgment of
conviction, and sentenced her to time served. According to
the government, Arqueta-Ramos was removed from the
United States that same day.
Arqueta-Ramos appealed to the district court, which
rejected her Rule 11 argument and affirmed her conviction.
See 18 U.S.C. 3402. Arqueta-Ramos timely appealed the
district court’s judgment of conviction.
II. STANDARD OF REVIEW
“The Court reviews de novo a district court’s decision
regarding questions of law, including the sufficiency of a
Rule 11 plea colloquy.” Aguilar-Vera, 698 F.3d at 1200.
Where, as here, the defendant raised her objections during the
plea proceeding, the court reviews for harmless error. Id.
III. ANALYSIS
A.
We must decide if the district court complied with its
Rule 11 duty to “address the defendant personally in open
court,” which includes both informing the defendant of her
rights and determining that she understands those rights. Fed.
UNITED STATES V. ARQUETA-RAMOS 11
R. Crim. P. 11(b)(1).6 In deciding this issue, we do not write
on a blank slate. “We have several times before held that
certain aspects of [Operation Streamline] violate . . . Rule
11,” and “we follow those precedents.” Aguilar-Vera,
698 F.3d at 1197.
In our first encounter with Operation Streamline, we held
that it was error for the court to both advise and question
forty-seven to fifty defendants en masse, accepting “general
yes” responses when the court asked the group of defendants
if they understood their rights. Roblero-Solis, 588 F.3d at
695; see also id. at 700. We concluded that the court’s Rule
11 duty to “address the defendant personally in open court,”
Fed. R. Crim. P. 11(b)(1), requires that “the judge’s speech
. . . be person to person,” Roblero-Solis, 588 F.3d at 700.
Thus, we held, “the number of plea-takers may [not] be
indefinitely expanded without violation of Rule 11.” Id.We refined our rule from Roblero-Solis in Escamilla-
Rojas. There, as in Roblero-Solis, the court had collectively
advised sixty-seven defendants of their rights. Escamilla-
Rojas, 640 F.3d at 1058. It then questioned each defendant
individually to ascertain whether the defendant understood
her rights. We explained,
[S]uch group advisement alone does not
constitute Rule 11 error. Rather, we look also
to the court’s questioning of the defendants to
6
“Before the court accepts a plea of guilty or nolo contendere, the
defendant may be placed under oath, and the court must address the
defendant personally in open court. During this address, the court must
inform the defendant of, and determine that the defendant understands, the
following . . . . ” Fed. R. Crim. P. 11(b)(1).
12 UNITED STATES V. ARQUETA-RAMOS
determine whether the court ensured
“personally” that each defendant understood
the rights he was waiving by pleading
guilty. . . .
In general, this process of a collective
advisement followed by individual
questioning may be sufficient to determine
“personally” that each defendant understands
his rights before pleading guilty.
Id. at 1060. Under the facts of that case, however, we
concluded that the court had not complied with Rule 11
because the defendant “was not individually questioned until
nearly two hours after the magistrate judge began his group
advisement,” and he “may have found it quite difficult to
recall the court’s full advisement of rights over such a long
gap of time.” Id.7 We reached the same conclusion when
faced with nearly identical facts in Aguilar-Vera.8
7
In Escamilla-Rojas, we noted that if “the court had followed each of
its general advisements immediately with individual questioning or if it
had otherwise supplemented its general advisement with a written form,
our concerns might be alleviated.” 640 F.3d at 1060 n.3.
8
In Aguilar-Vera, as in Escamilla-Rojas, the court had advised a large
group of defendants of their rights, and then questioned them individually
to ensure they understood their rights. 698 F.3d at 1198–99. We held that
there was Rule 11 error because of the “long delay between the magistrate
judge’s collective advisement and Aguilar-Vera’s guilty plea—one hour,
in this case.” Id. at 1201. We also held that there was Rule 11 error
because the collective advisement had included “multiple subgroups” of
defendants, not all of whom were charged with the same offense(s), and
the judge did not clearly explain which sub-groups risked imprisonment
and which would receive only fines. Id.
UNITED STATES V. ARQUETA-RAMOS 13
Here, we face a new permutation of events: as in our
prior cases concerning Operation Streamline, the court
advised a large group of defendants of their rights en masse.
However, it then questioned them in small groups of five,
collectively asking each group several questions to ascertain
whether the defendants understood their rights and the
consequences of their pleas. The court accepted “all answer
yes” and “all answer no” responses to these questions. We
conclude that such small-group questioning, unlike individual
questioning, cannot “render the court’s general advisement
sufficiently ‘personal,’” so as to satisfy Rule 11(b)(1). See
Escamilla-Rojas, 640 F.3d at 1060. Indeed, we have held that
“the word order in which ‘personally’ follows ‘the defendant’
[in Rule 11] emphasizes that the judge’s speech is to be
person to person.” Roblero-Solis, 588 F.3d at 700 (emphasis
added). Here, however, the court did not engage in “person
to person” speech during the advisement of rights or the
subsequent small group questioning of the defendants. The
only individual question that the court asked Arqueta-Ramos
was “how do you plead, guilty or not guilty?,” to which she
responded “guilty.” We hold that the court’s collective group
questioning, where “nothing in the record . . . establishe[d]
any connection between the defendants,” id., violated the
requirement that the court “address the defendant personally
in open court,” Fed. R. Crim. P. 11(b)(1).9 See Roblero-Solis,
588 F.3d at 693 (“We act within a system maintained by the
rules of procedure. We cannot dispense with the rules
without setting a precedent subversive of the structure.”).
9
Because we hold that the court erred on this basis, we do not address
Arqueta-Ramos’s alternative arguments: (1) that there was a “gap”
between the group advisement of rights and small-group questioning, as
in Escamilla-Rojas and Aguilar-Vera, and (2) that the collective
advisement included subgroups with different rights, as in Aguilar-Vera.
14 UNITED STATES V. ARQUETA-RAMOS
B.
We next consider whether the district court’s Rule 11
error warrants reversal. “A variance from the requirements
of [Rule 11] is harmless,” and does not require reversal, “if it
does not affect substantial rights.” Fed. R. Crim. P. 11(h).
“For an error to affect substantial rights, ‘in most cases it
means that the error must have been prejudicial: It must have
affected the outcome of the district court proceedings.’”
United States v. Collins, 684 F.3d 873, 881 (9th Cir. 2012)
(quoting United States v. Olano, 507 U.S. 725, 734 (1993));
see also United States v. Jimenez-Dominguez, 296 F.3d 863,
867 (9th Cir. 2002). Because Arqueta-Ramos preserved her
Rule 11 objection, the government has “the burden of
persuasion with respect to prejudice.” United States v.
Joseph, 716 F.3d 1273, 1280 n.9 (9th Cir. 2013) (internal
quotation marks and citation omitted). That is, the
government must show “that [Arqueta-Ramos] would have
pleaded guilty even without the Rule 11 error.” Escamilla-
Rojas, 640 F.3d at 1061; see also Aguilar-Vera, 698 F.3d at
1201 (“Because the magistrate judge did not comply with
Rule 11, the government bears the burden of identifying
evidence in the record that Aguilar-Vera’s guilty plea was, in
UNITED STATES V. ARQUETA-RAMOS 15
fact, both knowing and voluntary.”).10 We conclude that it
has failed to do so here.
The government relies heavily on Escamilla-Rojas, where
we held that the record was “replete with evidence that [the
defendant] . . . entered her plea with full knowledge of its
consequences.” 640 F.3d at 1061. We reached the same
conclusion in Aguilar-Vera. 698 F.3d at 1202. But the
record here is not as replete with such evidence. First, unlike
in Escamilla-Rojas and Aguilar-Vera, Arqueta-Ramos did not
“explicitly state[] that she understood her rights, the charges
against her, and the consequences of pleading guilty.”
Escamilla-Rojas, 640 F.3d at 1061; see also id. at 1060 (“The
transcript includes specific and individual answers to these
questions for each defendant, including Escamilla.”). Rather,
as discussed supra, Arqueta-Ramos did not personally tell the
judge anything, other than that she wished to enter a plea of
“guilty.” The record reflects only “all answer yes” and “all
10
The government argues that we should review for plain error, because
“by asking the court to accept the defendant’s plea and proceed to
sentencing, defense counsel in effect withdrew his objections relating to
the alleged invalidity of the plea.” Cf. United States v. Vonn, 535 U.S. 55,
59 (2002) (holding that we review for plain error where a defendant did
not preserve her Rule 11 objection). But the government does not cite any
cases suggesting that a defendant who requests that his plea be accepted
constructively withdraws all objections to the plea proceeding.
Furthermore, such a rule does not make sense: if a defendant’s guilty plea
wiped out all prior objections to the plea proceeding, then no Rule 11 error
could be reviewed for harmless error. Cf. United States v. Davila,
133 S. Ct. 2139, 2147 (2013) (“[A] Rule 11 error may be of the Rule 52(a)
type, or it may be of the Rule 52(b) kind, depending on when the error was
raised.”). Nor can we reconcile such a rule with our decisions in
Escamilla-Rojas and Aguilar-Vera, where we reviewed for harmless error
under procedurally similar facts. See Aguilar-Vera, 698 F.3d at 1201;
Escamilla-Rojas, 640 F.3d at 1060–61.
16 UNITED STATES V. ARQUETA-RAMOS
answer no” responses from the small group of defendants.
We do not know how assuredly or uncertainly Arqueta-
Ramos responded to these questions; indeed, we are not
certain that the magistrate judge would have even detected if
Arqueta-Ramos failed to answer one of the questions. See
Roblero-Solis, 588 F.3d at 700 (expressing concern about a
judge’s ability “to hear distinctly and accurately” multiple
voices offering collective responses, “however conscientious”
the judge).
Furthermore, although “statements made by a criminal
defendant contemporaneously with his plea” are ordinarily
“accorded great weight” when “assessing the voluntariness of
the plea,” Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir.
1986), we have accorded them less weight where they were
made in response to actions by the judge that violated Rule
11. See United States v. Anderson, 993 F.2d 1435, 1438 (9th
Cir. 1993) (explaining that, where the district court
improperly participated in plea negotiations and imposed
“unreasonable constraints” regarding the time period within
which the defendant could plead guilty, “[the defendant’s]
responses to the judge’s questioning” did not “allay our
concerns regarding voluntariness”), abrogated on other
grounds by Davila, 133 S. Ct. at 2146 n.2. Cf. United States
v. Villalobos, 333 F.3d 1070, 1075 (9th Cir. 2003) (“The fact
that Villalobos stipulated to a drug quantity as part of his plea
agreement does not show that he would have pled guilty to
this quantity or pled guilty at all if he had been properly
informed about the burden of proof as to quantity.”). We
therefore assign only minimal weight to Arqueta-Ramos’s
record of participation in the collective “all answer yes” and
“all answer no” responses to the judge’s questioning about
whether the defendants understood their rights.
UNITED STATES V. ARQUETA-RAMOS 17
We likewise reject the government’s second argument,
that Arqueta-Ramos’s failure to indicate that she had any
questions during the plea colloquy shows that the Rule 11
error was harmless. In Escamilla-Rojas, we found it
significant that the defendant “never indicated that she had
any questions,” either during the group advisement “or . . . in
her individual colloquy with the magistrate judge.”
Escamilla-Rojas, 640 F.3d at 1061 (emphasis added); see also
Aguilar-Vera, 698 F.3d at 1202 (noting that Aguilar-Vera did
not stand when the defendants were told to “stand if at any
point they did not understand”). But here, again, there was no
individual colloquy. Nor was there a clear point during the
small group colloquy at which Arqueta-Ramos could have
asked a question: the court did not give the defendants an
opportunity to ask questions until after she had accepted their
guilty pleas, at which point it is not clear what questions
Arqueta-Ramos might have even asked.11 Thus, under the
facts of this case, Arqueta-Ramos’s failure to ask a question
is less persuasive evidence of the voluntariness of her plea
than it was in Escamilla-Rojas.
Nor can we rely on the third factor identified in
Escamilla-Rojas: there, we found it significant that the
defendant was “informed of her rights and charges . . . by her
experienced defense counsel,” and that counsel “stated on the
record that he had met with Escamilla and fully informed her
of the proceedings.” Id. at 1061; see also Aguilar-Vera,
698 F.3d at 1202. There is no such evidence here. The
record does not reflect any statements by counsel about what
he told Arqueta-Ramos, much less that he had “fully
11
The court did give the defendants an opportunity to ask questions
during the large group advisement, telling them to stand up if at any time
they did not understand the proceeding.
18 UNITED STATES V. ARQUETA-RAMOS
informed her” of the proceedings. It’s true that counsel did
tell the judge that he had “sufficient time” to speak with
Arqueta-Ramos, and that he joined in the “all answer yes”
responses to the court’s questions, “do each of you believe
that your clients are competent to plead and are pleading
voluntarily?,” and “[d]o each of you believe that your clients
understand the penalties they’re facing and the rights they’re
giving up?” But counsel’s statement that he believed his
client understood her rights and was pleading voluntarily tells
us little about the substance and depth of his conversations
with his client. Cf. United States v. Pena, 314 F.3d 1152,
1156 (9th Cir. 2003) (“The plea colloquy failed to comply
with Rule 11 because the district court never explained to
Pena the nature of the charges against him. Merely asking
Pena whether he had read the plea agreement and asking his
attorney whether the attorney, not Pena, understood and
agreed with the elements of the offense is insufficient.”);
United States v. Graibe, 946 F.2d 1428, 1434 (9th Cir. 1991)
(“What is critical in Rule 11 harmless error cases is what the
defendant knew at the time of the plea . . . .”). In the absence
of more affirmative evidence of what Arqueta-Ramos knew
at the time of her plea, we do not find this argument
persuasive.
Finally, the government argues that Arqueta-Ramos has
failed to allege that she would have pled differently if given
a proper plea colloquy. See Escamilla-Rojas, 640 F.3d at
1061 (“Escamilla does not now allege that she would have
pleaded differently if the magistrate judge had advised her
individually rather than as part of a group.”). We agree that
if Arqueta-Ramos had made such an allegation, it would be
persuasive evidence that the error was not harmless. But it is
not her burden to show that she would not have pled guilty
absent the Rule 11 error; it is the government’s burden to
UNITED STATES V. ARQUETA-RAMOS 19
show that she would have pled guilty absent the error. See
id.; Jimenez-Dominguez, 296 F.3d at 866 (“The harmless
error standard, which imposes the burden upon the
government to show that the error had no effect on the
defendant’s substantial rights, applies to any transgression of
Rule 11 which was raised before the trial court.” (emphasis
added)); see also Fed. R. Crim. P. 11 advisory committee
notes (explaining that “subdivision (h) should not be read as
supporting extreme or speculative harmless error claims or as,
in effect, nullifying important Rule 11 safeguards”).12
In sum, “it is impossible to know . . . what [Arqueta-
Ramos] would have done,” absent the Rule 11 error. United
States v. Kennell, 15 F.3d 134, 136–37 (9th Cir. 1994). With
so little evidence on the issue one way or the other, the
burden of proof becomes dispositive. The government has
the burden of showing that Arqueta-Ramos would have pled
guilty absent the error, and it has failed to do so here.
VACATED AND REMANDED FOR FURTHER
PROCEEDINGS.
12
In Aguilar-Vera, the court also cited two additional factors in support
of its conclusion that the error was harmless: (1) the defendant in Aguilar-
Vera had “‘specifically requested’” a particular hearing date, showing that
he “wanted to enter his plea and get through the process as soon as
possible,” and (2) the defendant specifically stated in his written
objections that he was “‘not requesting an individual court hearing.’”
698 F.3d at 1202 (quoting the defendant’s written objections). The
government does not argue that the record here contains such evidence.