United States v. Alberto Monzon

CALLAHAN, Circuit Judge,

dissenting:

I respectfully dissent.

The majority properly frames the issue before us. In order to obtain a reversal of conviction, Monzon must show a reasonable probability that but for the district court’s Rule 11 error, he would not have pled guilty to Count 21. Dominguez Benitez, 124 S.Ct. at 2338-39. Based on Monzon’s prior equivocation in accepting the plea agreement and the absence of evidence to support the “in furtherance” element of Count 21, the majority concludes it is reasonably probable that Monzon would have gone to trial on Count 21 and, therefore, finds reversible error. I disagree with the majority’s premises and conclusion.

The majority assumes that if Monzon had wanted to proceed to trial on Count 21, the government would have allowed him to do so without disturbing the dismissal of Count One and his guilty plea to Count 20. This simply ignores the nature of the plea-bargain process. In exchange for Monzon’s guilty plea to both Counts 20 and 21, the government dismissed Count One, which carried a ten year mandatory sentence. A conviction on all three counts would have resulted in a mandatory minimum prison sentence of 15 years. Thus, by entering a plea agreement, Monzon avoided the possibility of five additional years in prison if convicted on Count One, while the government secured a conviction on Counts 20 and 21. It is simply unreasonable to assume that the government would have agreed to dismiss Count One in exchange for just one guilty plea (Count 20), and then proceed to trial on Count 21 alone.

Moreover, although Monzon claimed that but for the conviction on Count 21 he would be eligible for a safety-valve reduction in his sentence, his admitted possession of a firearm in conjunction with the *1275drug offense arguably prevents him from qualifying. Title 18 U.S.C. § 3553; United States v. Nelson, 222 F.3d 545 (9th Cir.2000); U.S. Sentencing Guidelines Manual § 501.2(a)(2). In my view, this considerably weakens Monzon’s claim that he suffered prejudice as a result of the district court’s Rule 11 error. Given these considerations, I would not find reversible error in this case.

Even if there were reversible error, the appropriate remedy would be to place the parties in the same position that they were in before entering the original plea agreement. Thus, Monzon should be allowed to withdraw his plea in its entirety and either proceed to trial on all three counts or attempt to negotiate a new plea agreement with the government. The majority’s remedy effectively dismantles the plea agreement, parses out for remand the conviction on Count 21 and the sentence on Count 20, and leaves intact the dismissal of Count One. This permits Monzon to enjoy the benefits of the original plea agreement, while forcing the government to renegotiate new terms from a weaker bargaining position. I do not read Dominguez Beni-tez to require this sort of windfall remedy for plain error under Rule 11.