FILED
NOT FOR PUBLICATION JAN 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10259
Plaintiff - Appellee, D.C. No. 4:10-cr-00859-FRZ-BPV-1
v.
MEMORANDUM*
OSCAR FERNANDO MONROY-
REYES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted November 4, 2013
San Francisco, California
Before: KLEINFELD, THOMAS, and RAWLINSON, Circuit Judges.
Appellant Oscar Fernando Monroy-Reyes (Monroy-Reyes) challenges the
district court’s sua sponte decision to vacate his first guilty plea pursuant to a plea
agreement, and to sentence him to 156 months’ imprisonment after a second guilty
plea, without a plea agreement.
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court vacated the initial guilty plea to correct an error in the plea
agreement that referenced a count that was not included in the charges against
Monroy-Reyes, as alleged in the indictment. Monroy-Reyes now argues that the
district court’s action violated his right to be free from double jeopardy.
Because the double jeopardy claim is raised for the first time on appeal, we
review for plain error. See United States v. Teague, 722 F.3d 1187, 1190 (9th Cir.
2013). Plain error that warrants relief is (1) error, (2) that is plain, (3) that “affected
substantial rights,” and (4) that “seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Id. (citation omitted).
Regardless of how, had an objection been made, we might apply United States
v. Patterson, 381 F.3d 859 (9th Cir. 2004) and United States v. Valenzuela-Arisqueta,
724 F.3d 1290 (9th Cir. 2013), we need not perform that task to resolve this appeal.
Under plain error review, the district court’s action did not “seriously affect[] the
fairness, integrity, or public reputation” of the plea proceedings. Teague, 722 F.3d at
1190. Like the defendant in Valenzuela-Arisqueta, Monroy-Reyes “continued to
have the options of proceeding to trial, pleading guilty, or seeking to negotiate
another plea agreement. . . . ” 724 F.3d at 1296 (footnote reference omitted).
As noted above, Monroy-Reyes opted to plead guilty a second time, to the
correct charge. Correction of the erroneous plea actually bolstered the integrity of the
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proceedings, thereby foreclosing any viable claim of plain error. See Perry v. Brown,
667 F.3d 1078, 1087 (9th Cir. 2012) (emphasizing “the importance of preserving the
integrity of the judicial system”).
AFFIRMED.
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