U.S. v. Monzon, 03-30497.

• Decision Date: 07 December 2005
• Docket Number: No. 03-30497.,03-30497.
• Citation: 429 F.3d 1268
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alberto MONZON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

429 F.3d 1268

UNITED STATES of America, Plaintiff-Appellee, v. Alberto MONZON, Defendant-Appellant.

No. 03-30497.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2005.

Filed December 7, 2005.

Catherine L. Floit, Seattle, WA, for the defendant-appellant.

John McKay, United States Attorney, and Douglas B. Whalley, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, District Judge, Presiding. D.C. No. CR 02-0374-23 JCC.

Before: TASHIMA, PAEZ, and CALLAHAN, Circuit Judges.

TASHIMA, Circuit Judge.

Alberto Monzon appeals his conviction for possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Monzon contends that the district court accepted his guilty plea in violation of Rule 11 of the Federal Rules of Criminal Procedure and that the error affected his substantial rights. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

BACKGROUND

In November 2001, law enforcement officers began investigating a drug trafficking organization led by Juan Godinez-Vasquez. Through a court-authorized wiretap, officers determined that Monzon was involved with that organization. Federal agents executed a search warrant at Monzon's residence. Monzon was in bed at the time. The agents seized a loaded 9-millimeter semi-automatic handgun from under the bedcovers, $3,060 in cash from a coat in the closet, and 248.9 grams of heroin in an Enfamil baby formula can wrapped in electrical tape from the closet shelf.

Monzon was charged in three counts of a multi-count indictment with: (1) Count 1, conspiracy to distribute cocaine, heroin, and methamphetamine; (2) Count 20, possession of heroin with intent to distribute, in violation of 21 U.S.C. § 812; and (3) Count 21, possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Count 21 alleged that Monzon "knowingly and intentionally did possess a firearm, that is, a Pietro Beretta 9mm model 91 handgun, in furtherance of a drug trafficking crime, that is, possession of heroin with intent to distribute, as charged in Count 20, and conspiracy to distribute cocaine, heroin, and methamphetamine, as charged in Count 1."

At one point, Monzon moved to have his counsel, Michael Danko, discharged and to have his originally appointed counsel re-appointed. According to the motion, Monzon had twice indicated that he intended to accept the government's plea offer, but the first time, changed his mind during the plea colloquy, and the second time, decided he was not going to enter a plea upon arriving in court. The motion explained that communication between Monzon and Danko had broken down. At the hearing on the motion, the court reasoned that, if the court again permitted a change of counsel, the new attorney would be unprepared for trial, which was scheduled to commence the following week. It therefore denied Monzon's request for new counsel.

Monzon then entered a guilty plea to Counts 20 and 21 of the indictment: possession of heroin with intent to distribute, and possession of a firearm in furtherance of a drug trafficking crime. Count 1, the conspiracy count, was dismissed. At the plea hearing, conducted by a Magistrate Judge, Danko explained that his latest discussions with Monzon had been "amicable and complete" and that Monzon intended to go ahead with the guilty plea. The government summarized the charges and penalties, stating that Count 20 carried a term of imprisonment of not less than five and up to 40 years, and that Count 21 required a term of imprisonment of not less than five years, to be served consecutively. Monzon stated that he understood the two charges and their maximum penalties.

The Magistrate Judge advised Monzon that, if there were a trial on Count 21, the government would be required to prove that Monzon committed a drug trafficking offense and that Monzon knowingly possessed a firearm in furtherance of the drug trafficking offense. Monzon stated that he understood the elements of the offenses charged. The Magistrate Judge then asked Monzon if he understood that by pleading guilty, he would be giving up his right to require the government to prove those elements, and Monzon said that he did. The Magistrate Judge asked, "Is that what you wish to do?" Monzon replied, "Yes."

Next, the Magistrate Judge conducted a colloquy to determine whether Monzon agreed to the facts stated in the plea agreement. The following exchange occurred between the Magistrate Judge, Monzon, and Assistant United States Attorney Douglas Whalley:

Court: Did they come into your house in the nighttime or sometime on November 6 of 2002 and search your house?

Defendant: Yes.

Court: And at that time did they find in your bedroom 248.9 grams of heroin?

Defendant: Yes.

Court: Did they also find a loaded Beretta, nine-millimeter, semiautomatic handgun in the bed where you were sleeping?

Defendant: Yes.

Court: Did you in fact possess that firearm in part to protect those drugs?

Defendant: No. That's not it. I just had it because somebody sold it to me cheap.

Court: Mr. Whalley, what would the government's evidence show on the use of the firearm in connection with the offense?

Whalley: Simply that he had it in his possession in the bedroom with the drugs. That phrase is more a legal conclusion than it is a finding of fact, Your Honor, so I'm willing to accept the plea without item B, why he protected it, why he possessed it.

Court: Are you suggesting we strike that from the plea agreement?

Whalley: If the defendant does not admit it.

Court: Mr. Monzon, why did you feel that you needed or wanted to have a firearm?

Defendant: Because I always liked them and they sold it to me for cheap and, you know, I just bought it. I didn't buy it because of the drugs. It doesn't have anything to do with that.

Court: Mr. Whalley, maybe we better strike that. Any objection, Mr. Danko?

Danko: No, Your Honor.

Court: Mr. Monzon, is it true that the drugs were in your bedroom and the gun was also in your bedroom?

Defendant: Yes.

The plea agreement was then amended by deleting the sentence that stated: "(b) Defendant possessed the firearm in part to protect the drugs." As amended, the plea agreement's statement of facts stated only:

(a) On November 6, 2002, law enforcement agents executed a search warrant at Defendant's residence. ... In the bedroom, where Defendant was found sleeping, agents recovered 248.9 grams of heroin. Agents also recovered a loaded Beretta 9 mm semi-automatic handgun in the bed where Defendant was sleeping.

(c) The parties agree, and will recommend that the Court find, that the amount of heroin involved in the offense was 248.9 grams of heroin.

Monzon then pled guilty to Counts 20 and 21. The Magistrate Judge found that Monzon's guilty plea was knowing and voluntary and was "supported by an independent basis in fact," and set a date for sentencing before the district court. The district court entered an order accepting Monzon's plea and sentenced Monzon to a 120-month term of imprisonment and four years of supervised release. This timely appeal followed.

STANDARD OF REVIEW

When a defendant fails to object to a district court's asserted Rule 11 error, our review is limited to plain error. Fed.R.Crim.P. 52(a)-(b); United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2338, 159 L.Ed.2d 157 (2004). In assessing the effect of Rule 11 error, we must look to the entire record and not to the plea proceedings alone. The error requires reversal only if it affected the defendant's substantial rights. Id. We exercise our discretion to correct the error only if it "seriously affects 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).

ANALYSIS

On appeal, Monzon first contends that the district court violated Rule 11 of the Federal Rules of Criminal Procedure by failing to establish a factual basis for his guilty plea to possession of a gun in furtherance of a drug trafficking crime and in failing to ensure that he understood the charge against him and that the plea was voluntary. Monzon further argues that the Rule 11 error is not harmless because it affected his substantial rights. Second, Monzon contends that, in the absence of a conviction for possession of a gun in furtherance of a drug trafficking crime, he would be eligible for a safety valve reduction in his sentence pursuant to 18 U.S.C. § 3553(f).

I. Rule 11 Error

The government concedes that the district court erred by failing to determine that there was a factual basis for Monzon's guilty plea to possession of a gun in furtherance of a drug trafficking crime.¹ Because the government concedes that the district court's acceptance of Monzon's plea in violation of Rule 11 was plain error, we proceed to the issue of whether the error affected Monzon's substantial rights.

To obtain reversal of a conviction based on Rule 11 error, the defendant must show, based on the entire record, that the error affected his substantial rights. Dominguez Benitez, 124 S.Ct. at 2338-39. The defendant "must show a reasonable probability that, but for the error, he would not have entered the plea."² Id. at 2340. "A defendant must thus satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding." Id. (internal quotation marks and citations omitted). "The reasonable-probability standard is not the same as, and should not be confused with, a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different." Id. at 2340 n. 9.

In Dominguez Benitez, the Court explained that, to determine whether ...