United States v. Mancinas-Flores

RYMER, Circuit Judge,

concurring in part and dissenting in part:

I would not allow Mancinas-Flores another crack at pleading guilty to the firearm charge. Having offered to enter a guilty plea, Mancinas-Flores told the judge during the Rule 11 colloquy: “I’m really not guilty.” The judge then stopped the proceeding. I believe she had discre*689tion to do so because Fed.R.Crim.P. 11(b)(3) requires a factual basis for a guilty plea. Cf. In re Vasquez-Ramirez, 443 F.3d 692, 695 & n. 4, 700 n. 9 (9th Cir.2006) (holding that a district judge has no discretion to reject a guilty plea when all the requirements of Rule 11(b) are met, but does have discretion to reject a guilty plea “when he feels the plea has failed to meet the Rule 11(b) requirements”).

At no point did Mancinas-Flores ask for a recess, a continuance, or an opportunity to explain his response, nor did he indicate that the court should treat his plea as a nolo contendere plea or as an Alford plea,1 nor did he object at the hearing or later that the district court misunderstood his intentions, the nature of his plea, or the law. He did not ask to try again, or for reconsideration. Now he says he was offering an Alford plea, but in these circumstances I would decline to consider a theory about the plea that was nowhere presented to the district court.

Even assuming that what MancinasFlores really wanted to do was enter an Alford plea — despite the fact he never said so and did not state at the plea hearing that he was innocent — the district court had broad discretion to decline to go forward.2 We have made clear that a court is under no obligation to accept an Alford plea. As we said in United States v. O’Brien, a court “may accept a guilty plea of one who protests his innocence, United States v. Alford, but acceptance is not required.” 601 F.2d 1067, 1069 (9th Cir.1979) (citation omitted). Mancinas-Flores suggests that O’Brien is out-of-date, but O’Brien has never been overruled and indeed, Alford itself — and Rule 11 — makes the same point. Alford, 400 U.S. at 38 n. 11, 91 S.Ct. 160; Fed.R.Crim.P. 11 advisory committee’s note (1974); Fed.R.Crim.P. 11(a)(1).3

Mancinas-Flores argues, and the majority holds, that the district court’s failure to explain its reasons means that it did not actually exercise its discretion. I disagree *690given the record in this case. MancinasFlores neither objected nor sought an explanation; no doubt it was as obvious to him then, as it is to me now, that the district court rejected his guilty plea because he said he really wasn’t guilty. The court could do this whether his plea is characterized as it was at the time — an ordinary, “straight-up” guilty plea — or as it is now, a putative Alford plea. See, e.g., O’Brien, 601 F.2d at 1070 (declining to find abuse of discretion in rejecting guilty plea when a defendant refused to admit guilt); Buonocore, 416 F.3d at 1129-31(upholding district court’s discretion to adopt a general policy against Alford or nolo pleas).4 If a district court may reject an Alford plea as a matter of unarticulated preference, it follows that the court may do so without articulated reason.5

The reasons an Alford plea is problematic are, in any event, well recognized. To quote the Advisory Committee to Rule 11;

The defendant who asserts his innocence while pleading guilty or nolo contendere is often difficult to deal with in a correctional setting, and it may therefore be preferable to resolve the issue of guilt or innocence at the trial stage rather than leaving that issue unresolved, thus complicating subsequent correctional decisions. The rule is intended to make clear that a judge may reject a plea of nolo contendere and require the defendant either to plead not guilty or to plead guilty under circumstances in which the judge is able to determine that the defendant is in fact guilty of the crime to which he is pleading guilty.

Fed.R.Crim.P. 11 advisory committee’s note (1974) (quoted and relied upon in Buonocore, 416 F.3d at 1130). And, as we said in O’Brien, “ ‘[hjowever legally sound the Alford principle, which ... we do not dispute, the public might well not understand or accept the fact that a defendant who denied his guilt was nonetheless *691placed in a position of pleading guilty and going to jail.’ ” 601 F.2d at 1070(quoting United States v. Bednarski, 445 F.2d 364, 366 (1st Cir.1971)).6

Beyond this, I disagree with the majority’s premise that the district court might have rejected the plea for improper as well as proper reasons. Maj. op. at 682-83. Rather, I presume that district judges know the law. See, e.g., United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008); Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (“Trial judges are presumed to know the law and to apply it in making their decisions.”), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Thus, I presume that the experienced district judge in this case knew that she could accept a plea accompanied by protestations of innocence,7 but that she didn’t have to.

I also disagree with the majority’s suggestion that Vasquez-Ramirez calls into question a district court’s discretion to reject an Alford plea. Maj. op. at 682-83. Vasquez-Ramirez concerned a routine guilty plea in which the defendant admitted guilt, unlike this case where MancinasFlores tried to enter a guilty plea while insisting that he is “really not guilty,” or a typical Alford plea where the defendant asserts his innocence but is nevertheless willing to accept punishment and there is “strong evidence of actual guilt,” Alford, 400 U.S. at 37, 91 S.Ct. 160. Vasquez-Ramirez does not purport to speak to the situation in this case, or to an Alford plea. See 443 F.3d at 694-95. Indeed, Vasquez-Ramirez cites OBrien with approval for the proposition that “[a] trial court has discretion to accept or reject a guilty plea ... of one who protests his innocence.” Id. at 700 (citing and quoting O’Brien, 601 F.2d at 1069).

Finally, even if the district judge erred by failing to give reasons, I would simply remand for the court to explicate its ruling. In all the circumstances of this case, including that Mancinas-Flores went to trial without giving the district court any notice of any objection, I see no need for letting him go back to square one (now that he knows the result of trial and sentencing) without first allowing the district court the opportunity to cure the deficiencies Mancinas-Flores and this court have identified which, had they been timely identified, the court could have done to begin with.

Accordingly, I dissent from Part II, though I concur in Part III.

. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). As the Tenth Circuit succinctly explained:

A plea of nolo contendere is "a plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty.” An “Alford ” plea, named after the Supreme Court’s decision in North Carolina v. Alford, is a plea denominated as a guilty plea but accompanied by protestations of innocence.

United States v. Buonocore, 416 F.3d 1124, 1127 n. 2 (10th Cir.2005) (citation omitted).

. Actually, Mancinas-Flores' "I’m really not guilty” plea was neither a true Alford plea■— where the defendant proclaims his innocence — nor a true nolo contendere plea— where the defendant does not admit guilt but accepts the court treating him as guilty for purposes of the particular case. MancinasFlores’ proffer falls somewhere between the two, thus short of both, for which there is no precedent. If a defendant wants a court to accept a plea agreement but refuses to admit his own guilt, then he must navigate the waters of an Alford plea or a nolo plea. Mancinas-Flores never made that attempt, which is another reason I would adjure the course taken by the majority.

. Although a type of guilty plea, the advisory committee notes indicate that an Alford plea is procedurally treated as a nolo plea. See Fed.R.Crim.P. 11 advisory committee's note (1974). Rule 11(a)(1) provides that a defendant may plead nolo contendere only "with the court’s consent.” The Tenth Circuit so held in Buonocore, 416 F.3d at 1127 n. 2, 1129-31, aligning itself with O’Brien, but the Sixth Circuit took a different view in United States v. Tunning, 69 F.3d 107, 110-11 (6th Cir.1995), holding that Rule 11 imposes no consent requirement akin to Rule 11(a)(1) for Alford-type guilty pleas. To the extent the majority is influenced by Tunning, see maj. op. at 681, I believe we are instead bound by O’Brien.

. As the Tenth Circuit explained in Buonocore:

Secondary sources also provide support for the proposition that a district court has discretion to reject Alford or nolo pleas based on a general policy against such pleas. According to Wright and Miller, "the court is not required to accept a guilty plea from one who asserts he is innocent.” 1A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 174, at 201-02 (3d ed.1999). "It is discretionary with the court whether to accept the plea and it is wholly unlikely that refusal to accept the plea would be regarded as error on appeal.” Id. § 177, at 294. According to the American Law Reports:
One of the most important characteristics of the plea of nolo contendere, which distinguishes it fundamentally from the plea of guilty to which it is so frequently linked by the courts, is that its acceptance by the court is not a matter of right of the defendant but is entirely within the discretion of the court. All the later cases support the proposition that the plea of nolo contendere cannot be entered by the defendant as a matter of right but is pleadable only by leave of court, its acceptance by the court being entirely a matter of grace.

89 A.L.R.2d 540, § 14 (emphasis added).

. Curiously, the majority states that even if Buonocore is right and a district court may adopt a policy of refusing to accept all Alford pleas, it must at least disclose that it has such a policy and that it is rejecting the defendant's plea pursuant to that policy. Maj. op. at 682-83. Here, of course, there is no indication that the district judge had any such policy. Nor is there any reason why she should have disclosed her position on Alford pleas; the word Alford was never mentioned. So we have no call in this case to opine one way or the other on how district courts ought to conduct a true Alford hearing. My point in relying on Buonocore (which, in turn, relied on O’Brien), is that if a district court may reject a real Alford plea on a blanket basis, it could certainly reject the hybrid plea in this case for which there is no basis at all.

. What happened at sentencing in this case illustrates why "a judge may reject a plea of nolo contendere and require the defendant either to plead not guilty or to plead guilty under circumstances in which the judge is able to determine that the defendant is in fact guilty of the crime to which he is pleading guilty.” Fed.R.Crim.P. 11 advisory committee’s note (1974). Mancinas-Flores personally to Id the judge that "in no moment did I have anything to do with those people.” Likewise, his objection to the presentence report states: "Mr. Mancinas-Flores maintains his plea of innocense and denies the allegations of the Indictment. Mr. MancinasFlores adamantly disputes the jury's findings of guilt. Based on his continuing plea of innocense, Mr. Mancinas-Flores holds that the statements of the witnesses, whether under oath or in the pre-sentence report, are false.”

. To repeat, Mancinas-Flores did not state at the plea hearing that he was innocent.