dissenting:
The court’s holding requires that the trial judge decide at the plea colloquy whether a sentence enhancement applies. Because this conclusion contradicts our case law, common practice and common sense, I must respectfully dissent.
*1123I
A
The purpose of Federal Rule of Criminal Procedure 11 is to ensure that a defendant’s guilty plea is voluntary and intelligent. Accordingly, the trial judge must inform the defendant of the “maximum 'possible penalty provided by law.” Fed. R.Crim.P. 11(c) (emphasis added). As the wording of the rule recognizes, at every plea a great deal of uncertainty remains: the applicability of sentence enhancements; the contents and recommendations of the Presentence Report; the defendant’s objections to the report and the judge’s rulings thereon; and the effect of the sentencing guidelines. See United States v. Turner, 881 F.2d 684, 686-87 (9th Cir.1989); Fed.R.Crim.P. 11(c) advisory committee’s note to 1989 amendment. The majority’s reasoning veers away from the teaching of our case law that this uncertainty does not render a plea involuntary and points toward a new requirement that the defendant know his actual sentence before entering his plea.
B
Barrios-Gutierrez surprised the court and the government, when, after the first witness had been sworn, he announced that he would plead guilty to having reentered the United States illegally after having been deported, a violation of 8 U.S.C. § 1326(a). The district court judge then conducted the Rule 11 colloquy. He asked the attorneys for both parties whether there was any dispute that the maximum sentence was two years. Counsel for the government responded that while the maximum penalty for a violation of § 1326(a) was two years, he believed that because Barrios-Gutierrez’s deportation had followed an aggravated felony conviction, the government was entitled to file an enhancement under 8 U.S.C. § 1326(b)(2). This enhancement would result in a maximum sentence of twenty years imprisonment. The Supreme Court had just ruled in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that § 1326(b)(2), which increases the maximum penalty for illegal reentry from two to twenty years when the previous deportation followed an aggravated felony conviction, was a sentencing factor and not a separate offense. Unsure as to whether the government’s position was correct as a matter of law, the district court nevertheless informed Barrios-Gutierrez:
The Court: And so if (b)(2) applies in this case, the sentence could be, under the statute, up to 20 years and a fine of up to $250,000 or both or any combination of the two. Understand that?
The Defendant: Yes, I understand.
At this point, in my view, the district court had fulfilled its obligation to inform Barrios-Gutierrez of the “maximum possible penalty provided by law.” Fed. R.Crim.P. 11(c).
The majority’s criticism of the district court judge boils down to the fact that he did not rule on the merits of the government’s argument that § 1326(b)(2) could apply before accepting the plea. This reasoning reads the word “possible” right out of Rule 11. Possible means “being something that may or may not occur.” Webster’s Ninth New Collegiate Dictionary (1986) at 918. When Barrios-Gutierrez pled guilty he knew that he “may or may not” receive a twenty-year sentence. As the district court concluded the plea colloquy:
The Court: I find that the defendant ... understands the position taken by his [counsel]1 and apparent consultation with him as to the maximum sentence the court can impose, but he also understands the government’s position that if the government gives notice pursuant to 1326(b)(1) or (b)(2), the government’s *1124position is that a sentence that the court could impose a sentence greater than two years.
After making the above finding, the judge asked Barrios-Gutierrez: “Mr. Barrios-Gutierrez, how then do you plead to the charge of Illegal Reentry after Deportation as set forth in the indictment, guilty or not guilty?” From the transcript of the colloquy, it is clear that before Barrios-Gutierrez answered “Guilty, Your Honor,” he understood very well that if the government was right he faced up to twenty years in prison.2 That is all Rule 11 requires.
Rule 11 does not require that the district court decide the legal or factual applicability of the sentence enhancement before sentencing. The Supreme Court had established in Almendarez-Torres that § (b)(2) is a sentence enhancement only, not a separate offense, so that a defendant who is convicted under § 1326(a) can be sentenced under § 1326(b)(2). See 523 U.S. at 235, 118 S.Ct. 1219. Generally, district courts do not resolve the applicability of enhancements during the plea colloquy, but rather, as the court did here, at sentencing. See Turner, 881 F.2d at 686-87.
The district court judge acted correctly here. At the plea colloquy, he informed Barrios-Gutierrez that the penalty for the *1125section to which he pled guilty was two years, but that if the enhancement applied Barrios-Gutierrez could receive up to twenty years. Then, at sentencing, he decided that the government’s legal argument that the enhancement could apply was correct, he found that the government had established that on the facts of this case it applied, and he sentenced Barrios-Gutierrez accordingly to roughly one-quarter the statutory maximum of twenty years. The district court’s correct decision that as a matter of law § 1326(b)(2) applied is no different from other questions of law that the court decides after accepting a plea, such as its determination that a previous felony qualifies as an aggravated felony for the purposes of § 1326(b)(2). None of the cases cited by the majority stand for the proposition that Barrios-Gutierrez had to know to a certainty whether the sentence enhancement applied before pleading guilty. As the district court did not err in the first instance, the majority’s citation to cases discussing what qualifies as harmless error is besides the point.
II
The practical consequence of the majority’s conclusion illustrates that its holding contradicts not only our case law and common practice with respect to deciding the applicability of enhancements at the sentencing stage, but also common sense. The majority gives the district court two options on remand. The first is to vacate the guilty plea. This is likely little more than a waste of scarce judicial resources. Because there is no controversy that § 1326(b)(2) applies, if Barrios-Gutierrez repleads he will receive at least the same sentence he received the first time (or, ironically, perhaps a longer one). But then the plea will be knowing and intelligent, I suppose, because the judge will have informed him that when he repeats that it’s possible Barrios-Gutierrez might receive a twenty-year sentence he really means it! Of course, the defendant could decide to go to trial, but given the speed with which he pled guilty the first time, it is unlikely Barrios-Gutierrez feels confident about his chances. The second option the majority gives the district court is to restrict Barrios-Gutierrez’s sentence to two years. This would grant the defendant a windfall for no reason. This is not a case of the government being held to its side of a bargain. See Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir.1986) (holding that “where a petitioner has relied on a promise by the state in a plea agreement which has not been fulfilled, either withdrawal of the plea or specific performance of the agreement may be an appropriate remedy.”). In this case, such an action would reward Barrios-Gutierrez for having sown confusion by changing his plea after the first witness was sworn at his trial. He would undeservedly benefit by being given a two-year sentence when the law clearly prescribes that he should receive up to ten times as much for his crime.
Ill
As the district court properly informed Barrios-Gutierrez that he might face twenty years in prison and then correctly resolved the applicability of the enhancement at sentencing, I would affirm both the guilty plea and the 57-month sentence actually imposed.
. The transcript reads, "the position taken by his client,” but either the judge misspoke or his words were mistranscribed.
. Between the sections of transcript quoted by the majority the following exchange took place:
The Court: Did you hear what the government just told me that the government thinks they may have a right to file a notice that might enhance the sentence you receive.
Did you hear what the prosecutor just told me?
Defendant: Yes, I hear, but I don't understand very clearly what he’s saying.
Court: I'm not sure that I understand what his intentions are in that respect. Is it the government's view that under subsection B whether it’s one or two, you could [file] a notice under the Supreme Court's recent decision and the penalty could exceed the two years?
Government: That is our intent, Your Hon- or.
Court: That's your intent or that's your understanding?
Government: That's my understanding, Your Honor, from what I’ve read of the cases that 1326(a) does not require us to assert the enhancement in the indictment or plea, or have them plea to the aggravated part of the sentencing.
If we choose to file an enhancement, we just have to give notice to the defendant that we might do so. Therefore I guess in determining what to advise defendant, although I believe the two-year max applies to the 1326(a), I think it should be understood that there’s also the possibility of the enhancement being filed in regards to his aggravated felony, felony status.
Court: Did you hear the government expand upon the position they've taken about what they may do concerning 1326(a) and (b). Did you hear what he told me?
Defendant: Yes.
Court: Did you understand what he said?
Defendant: Yes, I understand.
Court: I’m not going to take a position now whether the government is right or wrong about what they've said. But I want to be sure that you understand that the government is taking the position here today and now that they may, which I presume also means they may not, but they certainly may file a notice that requests that I enhance at sentencing the sentence you receive based upon subsequent information they will provide me so that the sentence that you would receive would exceed two years. That's the position they’re taking and I understand — well, I want to be sure yo[u] understand that.
Government: And with the (b)(2) enhancement if it so applies, it's a maximum of 20 years.
Court: Is it the government’s position that the criminal history category of this defendant would place him in a(b)(2) category as opposed to a(b)(l)?
Government: Yes, Your Honor.
Court: Did you hear again what he just told me, Mr. Barrios?
Defendant: Yes, I did.
Defense Counsel: Mr. Barrios is well aware of the significance of (b)(1) and (b)(2), also, Judge.
Court: All right. Is that true, Mr. Barrios? Did you hear what your lawyer just told me?
Defendant: Yes.
Court: And so if (b)(2) applies in his case, the sentence could be, under the statute, up to 20 years and a fine of up to $250,000 or both or any combination of the two. Understand that?
Defendant: Yes, I understand.