with whom Circuit Judges PREGERSON and REINHARDT join, dissenting:
Rule 11 provides that, before accepting a guilty plea, the court must “inform the defendant of ... the maximum possible penalty provided by law.” Rule 11 does not provide that, before accepting a guilty plea, the court “must inform the defendant of the possible maximum penalty, depending on how one interprets the law.” The two phrases are not equivalent, but the majority proceeds as if they were.
Under the actual wording of Rule 11, the defendant is entitled to an essential piece of information regarding the consequences of his guilty plea: “the maximum possible penalty provided by law.” By promulgating Rule 11, Congress struck a balance between the needs of the sentencing system for development of facts and legal positions after conviction and the defendant’s need to have some certainty regarding the outside limits of the incarceration and other risks he is taking in pleading guilty. Thus, while the majority is correct that “[a]t every plea hearing, a great deal of uncertainty remains,” it is not correct that, under Rule 11, that uncertainty can include the question whether twenty years is or is not the “maximum possible penalty provided by law” for a § 1326(a) violation.
It is this bedrock, minimal, but essential information — what is the highest penalty a court is permitted to impose for the crime with which the defendant is charged — that the district court failed to provide to Barrios-Gutierrez. As. the majority recounts, the defense lawyer had apparently informed the defendant, erroneously, that once jeopardy attached, the vastly enhanced sentence available to the prosecution under § 1326(b)(2) as compared to § 1326(a) — an increase from, two to twenty years — would not be available to the prosecution. That poor advice was the very reason the defendant first went to trial and then truncated the proceedings by pleading guilty. The government then made a contrary legal representation regarding the maximum sentence that could be imposed upon a person convicted of a § 1326(a) violation, based on Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The district court refused, repeatedly, to resolve this dispute of law over the precise question to which, under Rule 11, the defendant was entitled to an answer — that is, what is the maximum penalty the law allows a district court to' impose for a § 1326(a) violation? Instead, the district court essentially told the défendant that there were two possibilities — the maximum possible sentence for a § 1326(a) violation might be two years, and then again, it might be twenty.
That this was the message communicated to the defendant is quite clear when one reads a more complete version of the colloquy than the majority includes in its opinion:
THE COURT: Now, I want to tell you what the statutory penalty is.... Counsel, is there any dispute that the penalty is the two years [defense] counsel has just indicated?
MR. MITCHELL: Your Honor, pursuant to the Supreme Court, ... possibly the government will be filing an[ ] enhancement to the 1326(a)....
THE COURT: All right. [The statute] provides that you shall be fined and the *1030fine cannot be more than $250,000, or in prison for not more than two years, or both of those.... Do you understand that?
THE DEFENDANT: Yes, sir, I understand.
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....
THE DEFENDANT: Yes, I hear, but I don’t understand very clearly what he’s saying.
THE COURT: ... Is it the government’s view that ... under subsection B ... you could [file] a notice under the Supreme Court’s recent decision and the penalty could exceed two years? ...
MR. MITCHELL: That’s my understanding, Your Honor, from what I’ve read of the cases ...
THE COURT: ... Did you hear what [the government] told me? ... Did you understand what he said?
THE DEFENDANT: Yes, I understand.
THE COURT: I am 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.... (Emphasis added).
Later, the mandatory sentence issue came up again. The defense attorney, asked at the end of the plea colloquy whether he had anything further to say, stated:
Your Honor, the only thing I would add to the record is that it is our position that once jeopardy attached, the government cannot change the indictment to increase the punishment alleged in the indictment, and in this case it’s a two-year maximum. That is our position. We are not agreeing that the government later on can file something that changes that....
Once again, the district court emphasized that he was not resolving the dispute between the parties concerning the maximum sentence available for a conviction under § 1326(a), stating: “I thought I tried to make clear as I was informing your client that it is the position of the government and I take no position now as to which of the two parties is correct, whether you are or whether the government is.... ” (Emphasis added).
Reading these exchanges, one cannot escape the conclusion that the defendant was not informed by the court of the “maximum possible sentence provided by law” for a violation of § 1326(a). He was only informed of the government’s position on that question, and of the court’s refusal to decide whether that position was correct.
It is true, of course, that even had the district court ruled on that basic legal issue and informed the defendant (and defendant’s counsel) of the true import of Almendarez-Torres, the defendant would still have not known whether the government was going to seek the twenty year sentence, and would not have been informed about whether, given his particular criminal record, the twenty year sentence would have been proper. So the decision whether to plead guilty still involved for this defendant, and involves for most defendants, much risk assessment, based on predictions concerning factual and legal matters. Rule 11, however, intended to provide some guidance, albeit often minimal guidance, to defendants in assessing their course of action, by requiring the judge to provide one definitive piece of information: Under the statute of conviction, what is the maximum sentence to which any defendant — not this defendant, in particular — may legally be sentenced. That information was not provided to the *1031defendant in this case. I would therefore reverse the judgment below and remand for further proceedings.