NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10428
Plaintiff-Appellee, D.C. No. 2:15-cr-00186-MCE-1
v. MEMORANDUM
JOHN CAL HOWE II,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California, Sacramento
Morrison C. England, Jr., District Judge, Presiding
Submitted December 5, 2017
San Francisco, California
Before: M. SMITH and IKUTA, Circuit Judges, and BATES, District Judge.
Defendant–Appellant John Cal Howe II held himself out as a decorated
military veteran in order fraudulently to obtain healthcare and other benefits from
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable John D. Bates, Senior United States District Judge for
the District of Columbia, sitting by designation.
the Department of Veterans Affairs (VA). He pled guilty to theft in connection with
healthcare benefits, theft of government property, making fraudulent demands
against the government, and making fraudulent representations about the receipt of
military decorations. See 18 U.S.C. §§ 641, 669, 704(b), 1003. He now appeals,
arguing that he was not advised of the nature of the charges, as required by Federal
Rule of Criminal Procedure 11(b)(1)(G). We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
Howe did not object at any time below. Review is therefore for plain error.
United States v. Dominguez Benitez, 542 U.S. 74, 80 (2004). To obtain relief, Howe
must show that: (1) there was error; (2) the error was plain; (3) the error affected
substantial rights, which ordinarily means it affected the outcome of the district court
proceedings; and (4) the error seriously affected the fairness, integrity, or public
reputation of the proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011). Even if the
magistrate judge erred, Howe has not demonstrated that any error affected
substantial rights because he has not shown “a reasonable probability that, but for
the error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83.
Taking into account the complete record, there is no indication that Howe was
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misled by any Rule 11 error. See id. at 84 (“[A]ssessing a claim that an error affected
a defendant’s decision to plead guilty must [consider] any indication that the [Rule
11 error] misled him.”). Howe confirmed that he had sufficient time to discuss the
case with counsel, including reviewing with counsel the charging documents—
which set forth the elements of the charges and relevant facts. He never indicated
that he misunderstood these documents and he stated that he was satisfied with his
counsel’s services. Although he was advised at the outset of the plea hearing that he
should speak up if he did not understand something, he never expressed any
confusion, asked any questions, or indicated that he misunderstood the charges. See
United States v. Aguilar-Vera, 698 F.3d 1196, 1202 (9th Cir. 2012) (Rule 11 error
did not affect substantial rights when, inter alia, the court instructed defendants to
stand if they did not understand or wanted to speak to counsel but defendant never
stood). Instead, he stated affirmatively and unequivocally that he understood the
nature of the charges and what the government would have to prove at trial. See id.
(Rule 11 error did not affect substantial rights when defendant affirmatively
responded that he understood the charges against him); see also Chizen v. Hunter,
809 F.2d 560, 562 (9th Cir. 1986) (“[S]tatements made by a criminal defendant
contemporaneously with his plea should be accorded great weight.”). In sum, then,
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the record shows Howe possessed “an understanding of the law in relation to the
facts.” United States v. Covian-Sandoval, 462 F.3d 1090, 1096 (9th Cir. 2006)
(citation omitted). This suggests that any further Rule 11 explanation would not
have affected Howe’s decision to plead guilty.
The record also confirms that Howe was intent on pleading guilty. See
Dominguez Benitez, 542 U.S. at 84–85 (evidence that a defendant did not intend to
go to trial relevant to whether Rule 11 error affected substantial rights); United States
v. Collins, 684 F.3d 873, 884 (9th Cir. 2012) (alleged Rule 11 error was harmless
because there was no evidence that defendant “would have done anything other than
affirm his guilty plea” had he been further advised of the nature of the charge). Howe
stated his intent to plead guilty on the record, agreed with the government’s factual
basis for the plea, and repeatedly admitted that he fabricated his military record to
steal healthcare and other benefits from the VA.
Hence, even if Howe were confused about the nature of the charges, he has
not shown that any error “affected the outcome of the district court proceedings.”
Puckett, 556 U.S. at 135 (citation omitted). Accordingly, because Howe has not
shown plain error, the judgment of the district court is
AFFIRMED.
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