FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT March 15, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 11-4117
(D.C. No. 2:10-CR-00514-TS-2)
MILTON RUIZ-BAUTISTA, (D. Utah)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before MURPHY, GORSUCH, and MATHESON, Circuit Judges.
Milton Ruiz-Bautista pled guilty to one count of possession with intent to
distribute heroin, in violation of 21 U.S.C. § 841(a)(1). On appeal, he asserts that the
magistrate judge who accepted his plea did not comply with Rule 11 of the Federal Rules
of Criminal Procedure and that his plea was not knowing and voluntary. Exercising
* After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App.
P. 32.1 and 10th Cir. R. 32.1.
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Change of Plea Hearing
On April 4, 2011, Mr. Ruiz-Bautista appeared before a federal magistrate judge
for a change of plea hearing.1 Because Mr. Ruiz-Bautista is a native Spanish speaker, a
Spanish-language interpreter was present. [ROA, Vol. 3 at 6]
Mr. Ruiz-Bautista asked the magistrate judge, “Am I scheduled now to plead
guilty?” ROA, Vol. 3 at 9. The magistrate judge asked whether he was “prepared to go
forward today with a plea agreement,” and Mr. Ruiz-Bautista responded that he
“want[ed] to ask [his] attorney what he advises.” Id. He conferred with his attorney, and
then the hearing recessed to await delivery of a document related to Mr. Ruiz-Bautista’s
plea.
1
In his reply brief, Mr. Ruiz-Bautista argues that he was surprised the April 4,
2011 hearing was a change of plea hearing.
The magistrate judge started the hearing by addressing a letter Mr. Ruiz-Bautista
had sent to the court that “indicate[d] that he [was] not satisfied with the services of his
lawyer” and that requested a change of counsel. ROA, Vol. 3 at 6. At the hearing, Mr.
Ruiz-Bautista stated he no longer wished to change counsel. Id. at 8. The magistrate
judge therefore denied the request in his letter. Mr. Ruiz-Bautista asserts on appeal that
he “thought he was [at the hearing] to receive n[e]w counsel, not plead.” Aplt. Reply Br.
at 7.
Contrary to Mr. Ruiz-Bautista’s assertion of surprise, the record reflects that the
April 4 hearing was set after Mr. Ruiz-Bautista filed a Motion to Set a Change of Plea.
ROA, Vol. 1 at 105. And, as discussed in this opinion, Mr. Ruiz-Bautista asked whether
he was scheduled to plead guilty, conferred with his attorney about his change of plea,
and proceeded to answer all the magistrate judge’s questions before entering a guilty
plea.
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When the hearing resumed, the magistrate judge asked, “Mr. Ruiz, is it still your
desire to enter into a plea agreement with the United States?” Id. at 11. He responded
“[y]es.” Id. The magistrate judge advised Mr. Ruiz-Bautista of the consequences of his
plea, and he was placed under oath. Id. at 11-13.
Mr. Ruiz-Bautista testified that he had reviewed, with a Spanish-language
interpreter’s assistance, a document titled “Statement by Defendant in Advance of Plea of
Guilty” (“Statement by Defendant”). Id. at 14. He further testified that he understood its
contents and had discussed its contents with his attorney. The magistrate judge noted that
the Statement by Defendant “contains a recitation of your constitutional rights” and that
“because they are so important to you, I want to go over them with you on the record so
that I am satisfied that you understand . . . your constitutional rights.” Id. at 14.
The magistrate judge then engaged in the following colloquy:
Sir, you have a right to have a trial in this matter. You
have a right to have that trial before 12 citizens of this district.
You have a right to be represented by counsel . . . . You have
the right to require the United States to present in open court
its witnesses and evidence against you. You have a right to
the services of your lawyer to confront the government’s
witnesses. You have the right to call witnesses of your own
at government expense. You also have the right to take the
witness stand and testify in your own behalf, although if you
did so, it would be under oath and subject to cross-
examination. Or you could exercise your right to remain
silent and no negative inference could be drawn against you
for that decision. You could not be found guilty unless the
finder of fact determined that the government had proved
each element of each offense against you beyond a reasonable
doubt.
...
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Do you understand, sir, that you have each of those
rights under the Constitution and that you will be giving them
up if I accept your plea?
Id. at 15. Mr. Ruiz-Bautista responded “[y]es.” Id. at 16.
The magistrate judge then asked whether “any threats or promises of any sort
[had] been made to [him] to induce [him] or to persuade [him] to enter into this plea
agreement.” Id. Mr. Ruiz-Bautista responded “[n]o.” Id. He confirmed that he had
discussed the plea with his lawyer as much as he wished, that he was satisfied with his
lawyer’s services, and that his decision to enter into the plea agreement was made after
full and careful thought, with his lawyer’s advice and a full understanding of his rights.
He stated he was not under the influence of alcohol, drugs, medication, or other
intoxicants, and that he had not been under such influence when he decided to enter into
the plea agreement. Id. at 16-17.
Mr. Ruiz-Bautista signed the Statement by Defendant, and the magistrate judge
recited the factual statement that was the basis of the government’s charge. Mr. Ruiz-
Bautista acknowledged that the factual statement was true and that it satisfied the
elements of the charge of possession of heroin with intent to distribute. Id. 20-21.
He then entered a plea of guilty. Id. at 21. The magistrate judge received
the plea, finding it to be “knowingly, voluntarily and intelligently entered.” Id.
Mr. Ruiz-Bautista was later sentenced to 150 months of imprisonment.
[ROA, Vol. 1 at 154] On June 14, 2011, the district court entered a judgment
reflecting Mr. Ruiz-Bautista’s conviction and sentence. Mr. Ruiz-Bautista filed a
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timely notice of appeal that same day. [Id. at 159]
B. Statement by Defendant
By signing the Statement by Defendant, Mr. Ruiz-Bautista “acknowledge[d] and
certif[ied]” that he was advised of and understood various rights and obligations,
including the following:
“that [he has] a right to a trial by jury,” ROA, Vol. 1 at 121, ¶ 6;
that, if he went to trial, his “attorney [could] cross-examine all witnesses
who testify against [him],” id. ¶ 6(c);
that “[n]o threats or promises of any sort have been made to [him] to induce
[him] or to persuade [him] to enter this plea,” id. at 124, ¶ 2;
“that [he has] a right to plead ‘Not Guilty,’ and . . . that if [he does] plead
‘Not Guilty,’ [he] can persist in that plea,” id. at 121, ¶ 5;
that “the judge may ask [him] questions under oath about the offense to
which the plea is entered. The questions, if asked on the record and in the
presence of counsel, must be answered by [him] and, if [he] give[s] false
answers, [he] can be prosecuted for perjury,” id. at 122, ¶ 10; and
“that the sentencing procedures in this case and the ultimate sentence will
be determined pursuant to 18 U.S.C. § 3553(a),” “that the Court must
consider, but is not bound by, the United States Sentencing Guidelines, in
determining [his] sentence,” and “that the final calculation by the Court for
sentencing purposes may differ from any calculation the United States,
[his] attorney, or [he] may have made, and [he] will not be able to withdraw
[his] plea in spite of that fact,” id. at 121, ¶ 3.
In the Statement by Defendant, Mr. Ruiz-Bautista also certified that “[o]n or about
May 27, 2010, . . . [he] knowingly possessed heroin with the intent to distribute it.” Id. at
122, ¶ 11. Specifically, he “drove a vehicle with 321 balloons of heroin located within its
center console . . . to distribute those drugs to another individual.” Id.
II. DISUSSION
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On appeal, Mr. Ruiz-Bautista argues that the magistrate judge did not comply with
Rule 11 because she failed to inform him of (1) his right to a jury trial, (2) his right to
have counsel cross-examine adverse witnesses, (3) his right to plead not guilty and to
persist in that plea, (4) the government’s right, in a prosecution for perjury, to use against
him statements he made under oath, and (5) the sentencing court’s obligation to calculate
his sentence by considering the U.S. Sentencing Guidelines and sentencing factors set
forth in 18 U.S.C. § 3553(a). See Fed. R. Crim. P. 11(b)(1)(A)-(C), (E), (M). He also
faults the magistrate judge for asking whether his “plea agreement,” rather than his
“plea,” was the result of threats or promises. See id. 11(b)(2) (“[T]he court must . . .
determine that the plea is voluntary and did not result from force, threats or promises
. . . .” (emphasis added)).
We begin by discussing Rule 11 and the standard of review applicable to this
appeal. We then address Mr. Ruiz-Bautista’s assertions of error.
A. Rule 11
Rule 11 of the Federal Rules of Criminal Procedure “is designed to assist the . . .
judge in making the constitutionally required determination that a defendant’s plea is
truly voluntary.” United States v. Ferrel, 603 F.3d 758, 762 (10th Cir. 2010) (quotations
omitted), cert. denied, 131 S. Ct. 481 (2010). Under the rule, a court accepting a guilty
plea must place the defendant under oath and, addressing the defendant in open court,
inform the defendant of various rights and obligations. See Fed. R. Crim. P. 11(b).
These rights and obligations include
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“the right to a jury trial,” id. 11(b)(1)(C);
“the right at trial to confront and cross-examine adverse witnesses,” id.
11(b)(1)(E);
“the right to plead not guilty, or having already so pleaded, to persist in that
plea,” id. 11(b)(1)(B);
“the government’s right, in a prosecution for perjury or false statement, to
use against the defendant any statement that the defendant gives under
oath,” id. 11(b)(1)(A); and
“in determining a sentence, the court’s obligation to calculate the applicable
sentencing-guideline range and to consider that range, possible departures
under the Sentencing Guidelines, and other sentencing factors under 18
U.S.C. § 3553(a),” id. 11(b)(1)(M).
Rule 11 also requires the court to “address the defendant personally in open court and
determine that the plea is voluntary and did not result from force, threats, or promises
(other than promises in a plea agreement).” Id. 11(b)(2).
B. Standard of Review—Plain Error
Our review of Rule 11 compliance encompasses the entire record and is not
limited to the “four corners” of the plea hearing transcript. United States v. Vonn, 535
U.S. 55, 59, 74-75 (2002).
Ordinarily, “[w]hether a district court has complied with Rule 11 in accepting a
defendant’s plea and, accordingly, whether the defendant’s plea was knowing, intelligent,
and voluntary, is a question of law we review de novo.” United States v. Gigot, 147 F.3d
1193, 1197 (10th Cir. 1998). When a defendant fails to object to a court’s Rule 11 errors,
the defendant bears the burden on appeal to demonstrate that plain error occurred. Vonn,
535 U.S. at 59; United States v. Landeros-Lopez, 615 F.3d 1260, 1263 (10th Cir. 2010).
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“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects the
defendant’s substantial rights, and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Landeros-Lopez, 615 F.3d at 1263 (quotations
omitted). Because Mr. Ruiz-Bautista did not object to the Rule 11 colloquy, we review
the magistrate judge’s compliance with the rule for plain error.
Under the third element of plain error review, a defendant must prove that Rule 11
noncompliance affected his substantial rights. See id.; see also United States v.
Dominguez Benitez, 542 U.S. 74, 76 (2004). To do so, the defendant “must show a
reasonable probability that, but for the error, he would not have entered the plea.”
Dominguez Benitez, 542 U.S. at 83. The defendant must “satisfy the judgment of the
reviewing court . . . that the probability of a different result is sufficient to undermine
confidence in the outcome of the proceeding.” Id. (quotations omitted).
“Rule 11 error is not prejudicial when the defendant was simply deprived of a
mandated procedure as opposed to the substantive material information contemplated by
the rule.” Ferrel, 603 F.3d at 763 (emphasis added). “Thus, a defendant who receives the
information omitted by the district court from other sources generally cannot demonstrate
that he would not have pleaded guilty had the court also so informed him.” Id. (emphasis
added).
Employing these principles, we held in United States v. Ferrel that the defendant’s
substantial rights were not affected when the court erroneously failed to inform him of
the drug-quantity element of his offense during the Rule 11 colloquy. Id. at 763-64. We
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looked to the entire record and noted that the drug-quantity element “was alleged in the
indictment, the same language was repeated in the plea agreement and in [the
defendant’s] Statement in Advance of Plea of Guilty, and [the defendant] himself
acknowledged discussing the elements of the offense with his attorney prior to the Rule 11
hearing.” Id. at 764 (emphases added); see also United States v. Kearney, 684 F.2d 709,
710-11 (10th Cir. 1982) (rejecting defendant’s assertion that he was not adequately
informed of his offenses, in part because he signed a Statement by Defendant in Advance
of Plea of Guilty acknowledging that the charges had been explained to him).
C. Alleged Rule 11 Errors
We divide Mr. Ruiz-Bautista’s assertions of error into two categories: (1)
instances where the colloquy did not match Rule 11 verbatim, and (2) instances where the
magistrate judge failed to inform Mr. Ruiz-Bautista of a Rule 11 right or obligation.
1. Failure to Follow Rule 11 Verbatim
Mr. Ruiz-Bautista identifies three instances where the magistrate judge failed to
follow Rule 11 verbatim. First, the magistrate judge informed him that he had “a right to
have [a] trial before 12 citizens of this district,” instead of saying that he had a right to a
jury trial. See Aplt. Br. at 22. Second, the magistrate judge did not inform him of his
right to have his counsel cross-examine adverse witnesses, but instead stated he had a
right to have his counsel “confront the government’s witnesses.” Id. at 24 (quotations
omitted). Third, the magistrate judge asked whether “any threats or promises of any sort
[had] been made to [him] to induce [him] or to persuade [him] to enter into this plea
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agreement,” id. at 27, rather than asking whether his “plea . . . result[ed] from force,
threats, or promises,” Fed. R. Crim. P. 11(b)(2) (emphasis added).
Even assuming the foregoing divergences from the exact words of Rule 11 may
have been technical errors, they were not plain errors and cannot support Mr. Ruiz-
Bautista’s suggestion that his plea was not knowing and voluntary. The Advisory
Committee Notes to Rule 11 make clear that “minor and technical violation[s] of Rule 11
which amount[] to harmless error” are not a basis for reversal and that the rule does not
require “a litany or other ritual which can be carried out only by word-for-word
adherence to a set ‘script.’” Fed. R. Civ. P. 11, advisory committee’s notes to 1983
amendments. The rule “should not be given such a crabbed interpretation that ceremony
[is] exalted over substance.” Id.; see also Vonn, 535 U.S. at 64 n.6 (“In the absence of a
clear legislative mandate, the Advisory Committee Notes provide a reliable source of
insight into the meaning of a rule . . . .”). Our concern is whether a defendant’s plea was
knowing and voluntary, not whether the court adhered to an “incantation of the formula
of Rule 11.” United States v. Gomez-Cuevas, 917 F.2d 1521, 1524 n.2 (10th Cir. 1990);
see also United States v. Cross, 57 F.3d 588, 591 (7th Cir. 1995) (“Although
noncompliance with Rule 11 constitutes reversible error in this circuit, literal compliance
is not necessary.” (quotations omitted)).
Mr. Ruiz-Bautista’s three assertions of error exalt ceremony over substance and do
not undermine the knowingness or voluntariness of his plea. First, although the
magistrate judge did not use the word “jury,” she sufficiently apprised Mr. Ruiz-Bautista
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of the substance of the jury trial right by informing him he had a right to a “trial before 12
citizens of this district.” Mr. Ruiz-Bautista was informed of the “substantive material
information contemplated by the rule,” Ferrel, 603 F.3d at 763, and there was no plain
error.2
Second, although the magistrate judge did not state that Mr. Ruiz-Bautista’s
counsel could cross-examine adverse witnesses, she did state his counsel could confront
government witnesses. Cross-examination is an element of confrontation. See Maryland
v. Craig, 497 U.S. 836, 846 (1990) (describing the “elements of confrontation—physical
presence, oath, cross-examination, and observation of demeanor by the trier of fact”).
The absence of the term “cross-examine” was therefore a minor and technical omission
that did not compromise the knowingness or voluntariness of Mr. Ruiz-Bautista’s plea
and was not plain error.
Third, the magistrate judge’s question whether Mr. Ruiz-Bautista’s “plea
agreement,” rather than the “plea” itself, was the result of threats or promises is a
distinction without a material difference. Mr. Ruiz-Bautista moved for a change of plea
2
Mr. Ruiz-Bautista also argues that the magistrate judge did not inform him of the
“Sixth Amendment guarantee that the jury verdict must be unanimous.” Aplt. Br. at 22.
He concedes, however, that “Rule 11 is silent as to whether the court inform the
defendant that the jury must be unanimous.” Id. at 22 n.1.
Because Rule 11 does not require the magistrate judge to inform Mr. Ruiz-
Bautista of jury unanimity, and because it is not “clear or obvious under current, well-
settled law” that the magistrate judge was required to inform him of such a right, Mr.
Ruiz-Bautista has not shown plain error. United States v. Thornburgh, 645 F.3d 1197,
1208 (10th Cir. 2011) (quotations omitted), cert. denied, 132 S. Ct. 214 (2011).
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so that he could enter a plea of guilty pursuant to his agreement with the government.
The magistrate judge asked whether Mr. Ruiz-Bautista’s plea agreement, which was the
basis for his plea, had been made free of coercion. Use of the term “plea agreement”
instead of “plea” did not undermine the voluntariness of Mr. Ruiz-Bautista’s plea. It was
not plain error.
Although the magistrate judge did not adhere to the “incantation” of Rule 11, she
informed Mr. Ruiz-Bautista of the substance of his rights. Even if the magistrate judge
erred, the alleged errors were not “plain” because they were not “clear or obvious under
current, well-settled law.” Thornburgh, 645 F.3d at 1208 (quotations omitted).
Moreover, Mr. Ruiz-Bautista has not shown that any alleged error affected his
substantial rights. He has failed to demonstrate “a reasonable probability that, but for the
error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83. Mr.
Ruiz-Bautista certified in the Statement by Defendant that he was advised of and
understood his right to a jury trial and his right to cross-examine witnesses. He certified
that no threats or promises were made to persuade him to enter his plea. He therefore
received from another source any information omitted by the magistrate judge and cannot
show an impact on his substantial rights. See Ferrel, 603 F.3d at 763-64.
For these reasons, we conclude that Mr. Ruiz-Bautista has not shown plain error in
the magistrate judge’s failure to adhere to Rule 11 verbatim.
2. Failure to Inform Mr. Ruiz-Bautista of Rule 11 Rights and
Obligations
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Mr. Ruiz-Bautista argues that the magistrate judge failed to apprise him of three
other Rule 11 rights and obligations: (1) the government’s right, in a prosecution for
perjury, to use against him statements he made under oath; (2) his right to plead not
guilty and to persist in that plea; and (3) the sentencing court’s obligation to calculate his
sentence by considering the U.S. Sentencing Guidelines and factors set forth in 18 U.S.C.
§ 3553(a).3 The government concedes that these “three challenges to the plea colloquy
are stronger” and that the magistrate judge did not specifically apprise Mr. Ruiz-Bautista
of these rights and obligations. Aple. Br. at 10.
We agree with Mr. Ruiz-Bautista that the magistrate judge erred by not informing
him of these Rule 11 rights and obligations. See Ferrel, 603 F.3d at 763; see also Fed. R.
Crim. P. 11(b)(1) (stating “the court must inform the defendant of, and determine that the
defendant understands” the enumerated rights and obligations). Nonetheless, we need
not decide whether this error was plain because Mr. Ruiz-Bautista has not shown that the
3
Mr. Ruiz-Bautista alleges the magistrate judge failed to inform him that the
district court judge would impose his sentence. See Aplt. Br. at 8; Aplt. Reply Br. at 4.
The magistrate judge did mention the “sentencing before Judge Stewart,” ROA, Vol. 3 at
12, but assuming Mr. Ruiz-Bautista’s allegation were correct, Rule 11 does not contain a
specific requirement that a defendant be informed of which court will impose his
sentence. It requires that the defendant be informed of how the court will determine his
sentence. Fed. R. Crim. P. 11(b)(1)(M). The magistrate judge therefore did not commit
plain error if she failed to inform Mr. Ruiz-Bautista that the district court would
ultimately impose his sentence.
To the extent that this argument relates to “the court’s obligation to calculate the
applicable sentencing-guideline range and to consider that range, possible departures
under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C.
§ 3553(a),” id., we address that issue below.
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Rule 11 errors affected his substantial rights.4
Mr. Ruiz-Bautista’s appellate briefs do not specifically argue that there is a
reasonable probability that he would not have entered his plea had magistrate judge fully
complied with Rule 11. Even if such an argument is implicit in Mr. Ruiz-Bautista’s
briefs, the record and our precedent foreclose it.
“[A] defendant who receives the information omitted by the district court from
other sources generally cannot demonstrate that he would not have pleaded guilty had the
court also so informed him.” Ferrel, 603 F.3d at 763. In Ferrel, we noted that the
defendant could not demonstrate that a Rule 11 error affected his substantial rights. Id. at
763-64. The defendant had signed a statement in advance of his guilty plea containing
the information that the court had errantly omitted. Id. at 764. The defendant also had
discussed the information with his attorney. Id.
4
Mr. Ruiz-Bautista argues that the Rule 11 colloquy was “so rife with substantive
errors that it seriously adversely affects the fairness, integrity and public reputation of the
judicial proceeding.” Aplt. Reply Br. at 8. He asks that we “not impose in such
circumstances the burden . . . that the accused . . . show he would not have [pled] guilty
had the magistrate” complied with Rule 11. Id. In other words, he asks that we ignore
the third element of plain error and reverse his conviction based on the fourth element of
plain error.
But we are bound to follow the Supreme Court precedent that, under the plain
error standard of review, a defendant must establish that Rule 11 error affected his
substantial rights. See Dominguez Benitez, 542 U.S. at 83; Vonn, 535 U.S. at 58; see also
United States v. Kaufman, 546 F.3d 1242, 1247-48 (10th Cir. 2008) (recognizing the rule
set forth in Dominguez Benitez). To do so, the defendant “must show a reasonable
probability that, but for the error, he would not have entered the plea.” Dominguez
Benitez, 542 U.S. at 83 (emphasis added).
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Mr. Ruiz-Bautista signed the Statement by Defendant, which informed him of
each of the rights and obligations that the magistrate judge omitted. By signing the
Statement by Defendant, he certified that he had been advised of and understood those
rights and obligations. He also testified at the change of plea hearing that he had
reviewed the Statement by Defendant with a Spanish-language interpreter, understood its
contents, and had discussed its contents with his attorney.5 Accordingly, Mr. Ruiz-
Bautista received the omitted Rule 11 information from another source and cannot
demonstrate that his substantial rights were affected.
In addition, nothing in the record suggests “it is reasonably probable [Mr. Ruiz-
Bautista] would have gone to trial absent the error.” See Dominguez Benitez, 542 U.S. at
85; see also Ferrel, 603. F.3d at 764 (“Mr. Ferrel consistently and repeatedly admitted
prior to the Rule 11 hearing that his . . . offense involved at least fifty grams of
methamphetamine, and there is nothing in the record to suggest that he wanted a jury to
determine that issue.”). The complaint against Mr. Ruiz-Bautista states that agents and
5
Mr. Ruiz-Bautista discounts the Statement by Defendant because it states that he
speaks English. He asserts that he does not speak English, and it therefore “stands to
reason that if the [Statement by Defendant] had been fully reviewed with Mr. Ruiz-
Bautista, at a minimum, the error stating he spoke English would have been corrected.”
Aplt. Reply Br. at 6-7.
At the change of plea hearing, Mr. Ruiz-Bautista stated that he spoke English,
although only “a little bit,” but that he did not know how to write in English. ROA, Vol.
3 at 7. He further testified that he had reviewed the Statement by Defendant with a
Spanish-language interpreter and understood its contents. Id. at 14. We therefore see no
reason to doubt that he reviewed and understood the rights and obligations contained in
the Statement by Defendant.
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officers of the Drug Enforcement Agency arrested him on May 27, 2010, in Ogden, Utah.
They seized “approximately 320 balloons containing heroin” from his vehicle. ROA,
Vol. 1 at 15. After being advised of his rights under Miranda v. Arizona, 384 U.S. 436
(1966), Mr. Ruiz-Bautista stated that he had traveled to Ogden to deliver the heroin to
another individual. ROA, Vol. 1 at 15.
At the change of plea hearing, Mr. Ruiz-Bautista acknowledged these facts,
testifying that he had transported 321 balloons of heroin in the center console of a vehicle
to Ogden, where he intended to distribute the drugs to another person. ROA, Vol. 3 at
20. He admitted that the balloons later tested positive for 38.4 grams of heroin. Id. Mr.
Ruiz-Bautista acknowledged the truth of these facts in the Statement by Defendant.
ROA, Vol. 1 at 122.
In light of these allegations and admitted facts, we do not see how “it is reasonably
probable [Mr. Ruiz-Bautista] would have gone to trial absent the [Rule 11] error.” See
Dominguez Benitez, 542 U.S. at 85. “[I]t is hard to see here how [the magistrate judge’s
omissions] could have had an effect on [his] assessment of his strategic position.” See id.
In sum, Mr. Ruiz-Bautista has not shown that the magistrate judge’s errors
affected his substantial rights. He has failed to carry his burden of demonstrating plain
error.
III. CONCLUSION
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For the reasons discussed above, we affirm Mr. Ruiz-Bautista’s conviction.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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