United States v. Fausto Urias

FILED
NOT FOR PUBLICATION
SEP 09 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30321

Plaintiff - Appellee, D.C. No. 4:12-cr-00278-BLW-1

v.
MEMORANDUM*
FAUSTO ENRIQUE URIAS,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding

Submitted August 31, 2015**
Seattle, Washington

Before: GOODWIN, GOULD, and IKUTA, Circuit Judges.

Fausto Enrique Urias appeals his conviction following his guilty plea to

conspiracy to distribute fifty grams or more of methamphetamine in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Urias contends that the district court

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
failed to comply with Federal Rule of Criminal Procedure 11 during the plea

colloquy, and that this constitutes reversible error. Because Urias’s counsel failed

to raise these objections at trial, we review for plain error. See United States v.

Vonn, 535 U.S. 55, 58-59 (2002). We have jurisdiction under 28 U.S.C. § 1291.

We affirm.

The district court did not inform Urias of the plea-agreement provision

waiving his right to appeal, advise Urias that he had no right to withdraw the plea

if the court did not follow the recommendation or request, or inform Urias that the

agreed disposition would be included in the judgment, as required by Rule 11. See

Fed. R. Crim P. 11(b)(1)(N), 11(c)(3)(B), and 11(c)(4). However, Urias has not

met his burden of showing a reasonable probability that, but for these errors, he

would not have entered the plea. See United States v. Dominguez Benitez, 542

U.S. 74, 83 (2004) (“[A] defendant who seeks reversal of his conviction after a

guilty plea, on the ground that the district court committed plain error under Rule

11, must show a reasonable probability that, but for the error, he would not have

entered the plea.”).

The record does not support Urias’s contention that the parties failed to

disclose the plea agreement in open court. See Fed. R. Crim. P. 11(c)(2).

AFFIRMED.