NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 19 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-50519
Plaintiff - Appellee, D.C. No. 3:09-cr-02856-IEG-1
v.
MEMORANDUM*
ROBERT JOHN MCGILL,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50244
Plaintiff - Appellee, D.C. No. 3:09-cr-02856-IEG-1
v.
ROBERT JOHN MCGILL,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Senior District Judge, Presiding
Argued and Submitted March 4, 2014
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ, N.R. SMITH, and HURWITZ, Circuit Judges.
Robert McGill appeals a judgment of conviction and a life sentence imposed
after he pleaded guilty to second degree murder in violation of 18 U.S.C. §§ 7(8) and
1111(b). We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. McGill argues that the district court erred by allowing the clerk to take
his guilty plea before it conducted a Rule 11 colloquy. Federal Rule of Criminal
Procedure 11(b)(1), however, requires only that the colloquy occur before the district
court “accepts a plea of guilty,” and the judge did not accept McGill’s plea until after
conducting the colloquy.
2. McGill also asserts that the court erred by failing to question him in open
court about all matters listed in Rule 11(b)(1). But, many of the critical rights that
McGill waived by pleading guilty were set forth in a written plea agreement that
McGill signed three days before entering his plea. McGill told the district judge that
he had reviewed the plea agreement with his attorneys, and counsel so confirmed.
More importantly, McGill did not object contemporaneously to any inadequacies in
the colloquy. A defendant “who lets Rule 11 error pass without objection in the trial
court . . . has the burden to satisfy the plain-error rule and . . . a reviewing court may
consult the whole record when considering the effect of any error on substantial
rights.” United States v. Vonn, 535 U.S. 55, 58-59 (2002). We may vacate the
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sentence only if a defendant establishes a “reasonable probability that, but for the
error, he would not have entered the plea.” United States v. Borowy, 595 F.3d 1045,
1049 (9th Cir. 2010) (internal quotation marks omitted) (quoting United States v.
Monzon, 429 F.3d 1268, 1272 (9th Cir. 2005)). McGill has not met that burden. And,
because the record as a whole demonstrates the plea was entered voluntarily and
knowingly, we reject McGill’s argument that any omitted information resulted in
structural error.
3. McGill also argues that the district court erred when it denied his motion
to withdraw his plea because, when he made the motion, only the custodial portion of
his sentence had been imposed and the district court had not yet ordered any
restitution. McGill argues that the judgment was therefore not final when he made his
motion and that, accordingly, he was entitled to withdraw his guilty plea for any “fair
and just reason.” We disagree. McGill’s sentence was final even though the amount
of restitution had not yet been determined. See 18 U.S.C. § 3582(b)(3) (stating that
a judgment that includes a sentence of imprisonment is a final judgment).
4. McGill contends that the district court erred procedurally in determining
his sentence by finding facts that it previously stated it would not rely upon in
sentencing, not giving an adequate explanation for an upward departure, and failing
to consider fully the sentencing factors in 18 U.S.C. § 3553(a). The district court,
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however, relied only upon facts that were uncontested or apparent on the face of the
record, adequately justified its upward departure based upon the heinous nature of the
crime, and appropriately considered the § 3553(a) factors in arriving at its sentence.
5. The district court did not impose a substantively unreasonable sentence.
The court noted the brutal nature of the murder, the suffering of the victim, and the
special relationship of trust McGill had with the victim—his wife. McGill’s
disagreement with the district court’s weighing of the § 3553(a) factors does not
render the sentence substantively unreasonable.
6. The district court did not err in denying McGill a third level of reduction
for acceptance of responsibility. The government has discretion whether to file a
motion for a third level of reduction for acceptance of responsibility, and its refusal
to do so in this case was neither arbitrary nor for unconstitutional reasons. United
States v. Espinoza-Cano, 456 F.3d 1126, 1136 (9th Cir. 2006).
7. The district court did not use judge-found facts to impose a sentence in
violation of the Sixth Amendment. The sentence imposed was within the statutory
range permitted by guilty plea alone. In any event, the court relied only on
uncontroverted facts in imposing sentence.
AFFIRMED.
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