FILED
NOT FOR PUBLICATION JAN 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50440
Plaintiff - Appellee, D.C. No. 2:09-cr-00552-R-1
v.
MEMORANDUM*
ROGELIO RUIZ ALONSO, AKA
Alejandro Ruiz, AKA Saul Alonzo Ruiz,
AKA Pio Saul Saldivar, AKA Alonso Ruiz
Sam,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50441
Plaintiff - Appellee, D.C. No. 2:12-cr-00850-R-1
v.
ROGELIO RUIZ ALONSO, AKA
Alejandro Ruiz, AKA Saul Alonzo Ruiz,
AKA Pio Saul Saldivar, AKA Alonso Ruiz
Sam,
Defendant - Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted January 8, 2014
Pasadena, California
Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.
Defendant Rogelio Ruiz Alonso appeals his conviction and sentence for
illegal reentry and violation of supervised release, based on a Rule 11(c)(1)(C) plea
agreement. We vacate Alonso’s guilty plea and sentence and remand his case.
The Waiver of Appeal of Conviction in the plea agreement does not bar an
appeal challenging the voluntariness of the plea. Alonso’s claim that the district
court violated Federal Rule of Criminal Procedure 11(c)(5) by rejecting the
agreement and failing to give him an opportunity to withdraw his plea implicates
the plea’s voluntariness and is not waived.1
Because Alonso raises his Rule 11 challenge for the first time on appeal, our
review is for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002).
1
The government concedes that the district court committed procedural error
in imposing the sentence for the supervised-release violation. Specifically, the
district court failed to calculate the Guidelines range, mention the applicable
§ 3553(a) factors, or explain its sentence of 12 months’ imprisonment. The parties
agree that such errors warrant vacatur and remand, independent of the
voluntariness of the plea. See United States v. Hammons, 558 F.3d 1100 (9th Cir.
2009).
2
Alonso must show not only that the district court erred, but also 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).
The district court erred in failing to advise Alonso that it was rejecting the
plea agreement, as Rule 11(c)(5) requires. It sentenced Alonso to twelve months
for violation of his supervised release, consecutive to the 64-month sentence for
the new illegal reentry. In doing so, the district court effectively rejected the plea
agreement, which stipulated to a 64-month sentence for the illegal reentry and no
additional prison time for the supervised-release violation.
The government does not dispute that it agreed to recommend no additional
time for the supervised-release violation (and did so recommend during the plea
colloquy). It argues, however, that the recommendation did not bind the district
court because the 11(c)(1)(C) stipulation covered only the agreement with respect
to the illegal reentry. The plea agreement’s structure reveals the weakness of the
government’s proposed interpretation. The second paragraph of the document,
bearing the heading “Rule 11(c)(1)(C) Agreement,” states, “Defendant understands
that this agreement is entered into pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C).” (Emphasis added.) In the immediately subsequent section, the
defendant agrees to admit to the supervised-release violation. In exchange, the
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government agrees to recommend no additional prison time in connection with that
violation.
The most natural reading of the document is that Rule 11(c)(1)(C) was
intended to cover everything in the agreement, which included Alonso’s agreement
to admit Allegation 1 of the supervised-release violation in exchange for the
government’s recommendation of no additional prison time. The Rule 11(c)(1)(C)
stipulation appears at the beginning of the plea agreement and does not distinguish
between the illegal-reentry case and the supervised-release case. Because the
district court rejected the 11(c)(1)(C) agreement, Rule 11(c)(5) required it to
inform the parties that it was doing so and to offer Alonso an opportunity to
withdraw his plea. We hold that the district court erred in failing to do so.
We also hold that the district court’s error was plain. Alonso has shown a
reasonable probability that, had the district court advised him of its intention to
reject the terms of the agreement, he would not have entered this particular plea
bargain. See Dominguez Benitez, 542 U.S. at 76. Had he known that the district
court intended to impose prison time for the supervised-release violation, beyond
the stipulated 64 months for the illegal reentry, it is reasonably probable that
Alonso would have withdrawn his guilty plea and sought to negotiate a different
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agreement that took into account the additional time for the supervised-release
violation.
We therefore vacate Alonso’s conviction and sentence as to both the illegal
reentry and the supervised-release violation, because the district court’s failure to
comply with Rule 11(c)(5) rendered his guilty plea involuntary.
VACATED and REMANDED.
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