U.S. v. Jimenez-Dominguez

• Decision Date: 22 July 2002
• Docket Number: No. 99-50760.,99-50760.
• Citation: 296 F.3d 863
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank JIMENEZ-DOMINGUEZ, a.k.a. Ramon Santos, a.k.a. Frank Martin Jimenez, a.k.a. Frank Jimenez, a.k.a. Frank Dominquez Jimenez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

296 F.3d 863

UNITED STATES of America, Plaintiff-Appellee, v. Frank JIMENEZ-DOMINGUEZ, a.k.a. Ramon Santos, a.k.a. Frank Martin Jimenez, a.k.a. Frank Jimenez, a.k.a. Frank Dominquez Jimenez, Defendant-Appellant.

No. 99-50760.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2002.

Filed July 22, 2002.

COPYRIGHT MATERIAL OMITTED

Wayne Young, Santa Monica, California, for defendant-appellant Frank Jimenez-Dominguez.

John S. Gordon, Ronald L. Cheng, and Daniel Saunders, Office of the United States Attorney, Los Angeles County, for plaintiff-appellee the United States of America.

Appeal from the United States District Court for the Central District of California; Christina A. Synder, District Judge, Presiding. D.C. No. CR 98-01257 CAS.

Before THOMAS and RAWLINSON, Circuit Judges, and ARMSTRONG, District Judge.^*

OPINION

ARMSTRONG, District Judge.

Frank Jimenez-Dominguez ("Jimenez") appeals his conviction and sentence for a violation of 8 U.S.C. section 1326. Jimenez contends that his conviction should be reversed because the district court failed to inquire whether his guilty plea was the result of discussions between the United States and him or his attorney as required by Federal Rule of Criminal Procedure 11(d).¹ He also asserts that his sentence should be vacated under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the trial court enhanced his sentence upon a finding that he was previously convicted of an "aggravated felony."

During the pendency of the appeal, the United States Supreme Court rendered its decision in United States v. Vonn, ___ U.S. ___, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), which held that an appellate court reviews Federal Rule 11 transgressions for plain error where a defendant fails to object to the violation in the trial court. Thus, we must decide whether the district court's deviation from Rule 11(d) constitutes plain error. Because Jimenez has failed to demonstrate that the transgression affected his substantial rights, we find no plain error. Moreover, we conclude that the error does not seriously affect the integrity or fairness of the plea, or the public reputation of the proceedings. Finally, as we held in United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000), the use of "aggravated felonies" to enhance Jimenez's sentence does not offend Apprendi. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts are undisputed. Appellant, Frank Jimenez-Dominguez, was arrested in Los Angeles, California, on November 23, 1998. During an interview with a case agent from the Immigration and Naturalization Service, Jimenez stated that he was born in and is a citizen of Mexico. It was also determined that the United States had previously deported Jimenez four times and that he had returned to the United States on each occasion without first securing the permission of the United States Attorney General. The Presentence Report prepared by the United States Probation Office disclosed that Jimenez had suffered thirteen criminal convictions, six of which were aggravated felonies under 8 U.S.C. section 1101(a)(43).

On December 11, 1998, Jimenez was indicted on one count of violating 8 U.S.C. section 1326. He pled not guilty. On August 5, 1999, Jimenez informed the Honorable Christina A. Synder, United States District Judge for the Central District of California, of his intention to enter a guilty plea. There was no plea agreement with the Government. The court engaged the defendant in the colloquy required by Federal Rule 11(c)(6); however, it failed to specifically inquire whether the plea was the result of prior discussions between the Government and Jimenez or his counsel. The court found that Jimenez's guilty plea was freely and voluntarily made and, therefore, accepted the plea and found him guilty of violating 8 U.S.C. section 1326. Jimenez raised no objection to the trial court's Rule 11 failings. At the subsequent sentencing hearing on November 23, 1999, the district court found that Jimenez had previously been convicted of aggravated felonies and imposed a sentence consisting of an eighty-six month term of imprisonment, three years of supervised release, and a special assessment in the amount of $100.00.

II. RULE 11(d) VIOLATION

A. Applicable Law

Federal Rule of Criminal Procedure 11 governs the district court's acceptance of a guilty plea and specifies the procedures a court must employ to accept the plea. Rule 11 obliges the trial court to engage the defendant in a colloquy at the time the plea is entered for the purpose of establishing a complete record of the constitutionally-required determinations that the defendant is acting voluntarily, with an understanding of the charges which have been leveled at him, and upon a factual basis which supports his conviction. Pursuant to Rule 11(h), variances from the procedures of Rule 11 are disregarded if they do not affect the substantial rights of the defendant. Fed.R.Crim.P. 11(h). The harmless error standard, which imposes the burden upon the government to show that the error had no effect on the defendant's substantial rights, applies to any transgression of Rule 11 which was raised before the trial court. However, the Supreme Court recently held in United States v. Vonn, ___ U.S. ___, 122 S.Ct. 1043, 1048, 152 L.Ed.2d 90 (2002), that a defendant who raises a Rule 11 error for the first time on appeal may obtain reversal predicated upon the violation only by showing that there was plain error. Thus, we must determine whether Jimenez has met his burden in demonstrating plain error.

B. Plain Error Standard under Rule 52(b)

Rule 52(b) provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Fed.R.Crim.P. 52(b). The Supreme Court has established a two-step test to determine what transgressions may be noticed under Rule 52(b):

[First, there] must be an "error" that is "plain" and that "affect[s] substantial rights." [Second], Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error "`seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'"

United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citing United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). The burden is upon the defendant to demonstrate that the error affected his substantial rights. See United States v. Minore, 292 F.3d 1109, 1118 (9th Cir.2002); Olano, 507 U.S. at 734, 113 S.Ct. 1770. Only after a defendant satisfies this "heavy burden" does the reviewing court consider whether to exercise its discretion to notice the forfeited error because it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." See United States v. Sager, 227 F.3d 1138, 1145 (9th Cir.2000) (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) (alterations and internal quotation marks omitted).

1. "Error" which is "plain"

The Court in Olano advised that any deviation from a legal rule is an "error" and that "plain" is synonymous with clear or obvious. Olano, 507 U.S. at 733-34, 113 S.Ct. 1770. In this case, there is no dispute that the district court's failure to inquire specifically about prior discussions between the government and Jimenez or his attorney deviated from Federal Rule 11(d). That rule provides,

The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or the defendant's attorney.

Fed.R.Crim.P. 11(d) (emphasis added). Moreover, the court's failure to conform to the rule was salient given the Rule's express provisions requiring such an inquiry. Thus, the question presented is whether Jimenez can establish that the omission affected his substantial rights.

2. Substantial Right

In order for an error to affect a substantial right, it must be prejudicial, i.e., the error "must have affected the outcome of the district court proceedings." Olano, 507 U.S. at 734, 113 S.Ct. 1770. The burden is upon the defendant to make a "specific showing of prejudice." Id. at 735, 113 S.Ct. 1770. We have recently explained that,

[F]or purposes of plain error review we shall consider a Rule 11 violation to have affected a defendant's substantial rights only when the defendant proves that (1) the district court's error was not minor or technical and that (2) the defendant did not understand the rights at issue when he entered his guilty plea.

Minore, 292 F.3d 1109, 1117. This is the same substantive inquiry the reviewing court makes to determine whether a lower court's error was harmless; the only difference is that the burden is shifted to the defendant. See id. The defendant is entitled to present any evidence in the record in attempting to meet this burden. See Vonn, ___ U.S. ___, 122 S.Ct. at 1055, 152 L.Ed.2d 90.

The first question is whether Jimenez can demonstrate the error is not technical or minor. In general, Federal Rule 11 is designed to ensure that a plea of guilty is knowing and voluntary. See United States v. Longoria, 113 F.3d 975, 977(9th Cir.1997) rev'd on other grounds in Vonn, ___ U.S. ___, 122 S.Ct. at 1055, 152 L.Ed.2d 90. One of the purposes of the Rule 11(d) colloquy "is to determine whether or not promises have been made by the government, and what those promises are." United States v. Michlin, 34 F.3d 896, 899 (9th Cir.1994) (citing ...