United States v. Gilberto Aguilar-Vera , 698 F.3d 1196 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-10333
Plaintiff-Appellee, D.C. No.
v.  4:10-cr-00049-
GILBERTO AGUILAR-VERA, DCB-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
March 13, 2012—San Francisco, California
Filed October 29, 2012
Before: J. Clifford Wallace, Dorothy W. Nelson, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
13015
UNITED STATES v. AGUILAR-VERA 13017
COUNSEL
Jon M. Sands, Federal Public Defender, Jason M. Hannan
(argued), Assistant Federal Public Defender, Brian I. Radem-
acher, Assistant Federal Public Defender, District of Arizona,
Tucson, Arizona, for the defendant-appellant.
Dennis K. Burke, United States Attorney, Christina M.
Cabanillas, Appellate Chief, and Robert L. Miskell (argued),
Assistant U.S. Attorney, District of Arizona, Tucson, Arizona,
for the plaintiff-appellee.
OPINION
BEA, Circuit Judge:
On December 8, 2009, Defendant-Appellant Gilberto
Aguilar-Vera was arrested and charged with violating 8
U.S.C. § 1325, misdemeanor illegal entry by an alien. The
13018 UNITED STATES v. AGUILAR-VERA
next day, Aguilar-Vera was brought before a magistrate judge
in federal court in Arizona for a guilty plea proceeding that
was part of Operation Streamline, which is “a procedure for
the taking of pleas en masse.” United States v. Escamilla-
Rojas, 640 F.3d 1055, 1058 (9th Cir. 2011).
On appeal, Aguilar-Vera contends that his plea violated
Federal Rule of Criminal Procedure 11(b)(2), which states
that “[b]efore accepting a plea of guilty or nolo contendere,
the court must address the defendant personally in open court
and determine that the plea is voluntary and did not result
from force, threats, or promises (other than promises in a plea
agreement).” We have several times before held that certain
aspects of group plea proceedings violate various provisions
of Rule 11, and we follow those precedents and again con-
clude there was Rule 11 error. Escamilla-Rojas, 640 F.3d at
1060; United States v. Roblero-Solis, 588 F.3d 692, 700 (9th
Cir. 2009).
However, in Escamilla-Rojas—our last encounter with
Operation Streamline in a published opinion—we held that
the error was harmless. Here, again, we reach the same con-
clusion. As we explain below, the fact that harmless error
doctrine exists means that there are some errors, no matter
how clear, that our court may not correct by vacating a con-
viction. This is one of those errors.
I.
The facts of this case are uncontested. We recite them as
stated by the district court, with minor modifications.
On December 8, 2009, Aguilar-Vera was arrested and
charged with violating 8 U.S.C. § 1325, misdemeanor illegal
entry by an alien.1 On December 9, 2009, Aguilar-Vera was
1
That provision states that:
UNITED STATES v. AGUILAR-VERA 13019
brought before a magistrate judge for a proceeding of Opera-
tion Streamline, which is “a procedure for the taking of pleas
en masse.” Escamilla-Rojas, 640 F.3d at 1058. In Escamilla-
Rojas, we noted that Operation Streamline was created specif-
ically “[t]o accommodate the enormous number of prosecu-
tions for illegal entry into the United States.” Id. In Operation
Streamline proceedings, “a magistrate judge is assigned to
preside over a group hearing of fifty to seventy defendants
charged with petty misdemeanor violations of illegal entry.
The hearing combines the defendants’ initial appearances,
guilty pleas, and sentencing hearings into one proceeding.” Id.
Here, Aguilar-Vera and sixty-eight other defendants were
grouped together and each instructed to answer “present” if
and when their names were called out. Aguilar-Vera answered
from somewhere in the room. Attorneys for other defendants
proceeded to announce their appearances, and Aguilar-Vera’s
attorney announced his appearance for Aguilar-Vera as well
as for four other defendants.
The magistrate judge then instructed all the defendants
about the headphone equipment used to hear the interpreter
and what to do if a malfunction should occur. Then, all
defense counsel affirmed that their clients wished to plead
Any alien who
(1) enters or attempts to enter the United States at any time or
place other than as designated by immigration officers, or
(2) eludes examination or inspection by immigration officers, or
(3) attempts to enter or obtains entry to the United States by a
willfully false or misleading representation or the willful conceal-
ment of a material fact, shall, for the first commission of any such
offense, be fined under title 18, United States Code, or impris-
oned not more than 6 months, or both, and, for a subsequent com-
mission of any such offense, be fined under title 18, United States
Code, or imprisoned not more than 2 years, or both.
13020 UNITED STATES v. AGUILAR-VERA
guilty to the illegal entry charge and that each defendant
appeared competent.
The magistrate judge continued with the proceedings by
advising all defendants en masse of their rights, the charge,
elements of the offense, and the maximum penalties. She con-
tinued to talk to the entire group when addressing those who
had plea agreements, and she did not distinguish these defen-
dants from the others. For instance, the district court issued
the following en masse advisement:
Some of you have signed written plea agreements
with the government. And according to the terms of
those agreements, in exchange for your pleading
guilty, the government will dismiss the — will dis-
miss the felony offense of illegal reentry. The plea
agreement also contains the number or the amount of
time that the government wants me to give you as a
sentence.
If you plead guilty, I will accept that plea agree-
ment and I will give you the amount of time that is
in the agreement with credit for any time you may
have already served or been in custody this time.
...
Most of you do not have written plea agreements
with the government. And if I give you a sentence
that you believe is illegal, you have a right to file an
appeal with a higher judge or a higher court. That
appeal must be filed within 14 days of today’s date.
If you wish to file an appeal, discuss it with your
lawyer. He or she will prepare the paperwork for the
appeal and will represent you during the course of
that appeal.
The defendants were then asked to stand if they wanted to
have a trial, and none stood.
UNITED STATES v. AGUILAR-VERA 13021
Next, the magistrate judge called the defendants to the
bench in small groups. The magistrate judge said that she
would be sentencing those called in “the next groups” to a
fine and special assessment without imprisonment, unless she
informed counsel otherwise.
About an hour after the en masse recitation of trial rights,
the sixth group of defendants, including Aguilar-Vera, was
called to the bench. At this time, the magistrate judge had the
following personal exchange with Aguilar-Vera:
THE COURT: Mr. Gilberto Aguilar-Vera, sir, do
you understand your rights to a trial as I explained
them?
THE DEFENDANT: Yes.
THE COURT: Are you willing to give up those
rights and plead guilty?
THE DEFENDANT: Yes.
THE COURT: Do you understand the charge against
you?
THE DEFENDANT: Yes.
THE COURT: And do you understand the maximum
penalties?
THE DEFENDANT: Yes.
THE COURT: Of what country are you a citizen,
sir?
THE DEFENDANT: Mexico.
13022 UNITED STATES v. AGUILAR-VERA
THE COURT: On or about December 6 of this year,
did you enter into southern Arizona at a point not a
port of entry?
THE DEFENDANT: Yes.
THE COURT: How do you plead to illegal entry, sir,
guilty or not guilty?
THE DEFENDANT: Guilty.
Aguilar-Vera’s counsel immediately objected, and the mag-
istrate told counsel that he could file written objections fol-
lowing the proceeding. Counsel then stated “I would also ask
that Your Honor make a determination that his plea is know-
ing, intelligently, voluntarily [sic].” The magistrate said “I
will do that, sir.”
The magistrate judge then questioned Aguilar-Vera’s coun-
sel concerning Aguilar-Vera’s prior convictions. The govern-
ment asked that Aguilar-Vera be imprisoned, and Aguilar-
Vera was sentenced to 10 days in prison with credit for time
served and a special assessment. Finally, the court had
another brief additional colloquy with Aguilar-Vera:
THE COURT: Mr. Aguilar-Vera, is there anything
you would like to say, sir?
THE DEFENDANT: I plead guilty.
THE COURT: Well, sir, is there anything you want
to say other than you plead guilty?
THE DEFENDANT: That’s fine.
THE COURT: Thank you.
UNITED STATES v. AGUILAR-VERA 13023
Aguilar-Vera’s counsel timely filed written objections con-
tending that the plea violated Federal Rule of Criminal Proce-
dure 11(b)(1) and (b)(2),2 but no ruling on the objection was
ever made. Further, as the district court stated: “though the
judgment was entered on January 6, 2010, it was signed
December 9, 2009 meaning the written objection was not
reviewed prior to judgment.”
Aguilar-Vera appealed the conviction before the magistrate
to the district court, contending that the process violated Fed.
R. Crim. P. 11(b)(1) and (b)(2). In the written objections,
Aguilar-Vera, through counsel, stated that he “did not and is
not requesting an individual court hearing.” Then counsel told
the court that “Defendant specifically requested to proceed at
the hearing set on December 9, 2009; counsel is obligated to
follow his client’s directive and objects only to ensure that the
hearing comports with constitutional, precedential, and statu-
tory requirements.”
The district court found that Rule 11 was not violated, and
it affirmed the conviction by guilty plea. Aguilar-Vera timely
appeals.
II.
The Court reviews de novo a district court’s decision
regarding questions of law, including the sufficiency of a Rule
11 plea colloquy. United States v. Ross, 511 F.3d 1233, 1235
(9th Cir. 2008).
2
Fed. R. Crim. P. 11(b)(1) says that “[b]efore the court accepts a plea
of guilty or nolo contendere, the defendant may be placed under oath, and
the court must address the defendant personally in open court. During this
address, the court must inform the defendant of, and determine that the
defendant understands [several constitutional rights].”
Fed. R. Crim. P. 11(b)(2) says that “[b]efore accepting a plea of guilty
or nolo contendere, the court must address the defendant personally in
open court and determine that the plea is voluntary and did not result from
force, threats, or promises (other than promises in a plea agreement).”
13024 UNITED STATES v. AGUILAR-VERA
The harmless error standard applies to errors preserved by
objections raised during a plea proceeding. Fed. R. Crim. P.
11(h); Escamilla-Rojas, 640 F.3d at 1061. Under harmless
error, “any variance from the requirements of [Rule 11] is
harmless error if it does not affect substantial rights.” Fed. R.
Crim. P. 11(h). The harmless error standard applies here, as
the objections under both Rule 11(b)(1) and 11(b)(2) were
preserved to the fullest extent allowed by the magistrate
judge.
III.
We first consider whether there was error, and we conclude
there was. We next consider whether the error requires rever-
sal, and we conclude that it does not, because the error was
harmless beyond a reasonable doubt.
A.
To determine whether there was error, our guide is
Escamilla-Rojas, our most recent published encounter with
Operation Streamline. The defendant in that case pleaded
guilty following substantially similar procedures to those
here. 640 F.3d at 1058-59. That is, the magistrate judge first
“inform[ed] the defendants collectively of their rights, their
charges, the elements of the offense, and the consequences of
pleading guilty.” Id. at 1058. Then “the magistrate judge cal-
led the defendants individually to the front of the court room”
where “each defendant was asked whether he (1) understood
the crime with which he was charged; (2) understood the ele-
ments of such offense; (3) understood his rights, namely the
right to proceed to trial and the right to have an attorney; and
(4) understood the maximum possible penalty he faced.” Id.
at 1058-59.
[1] We held that the Operation Streamline procedure vio-
lated Rule 11(b)(1) on the facts of that case. Id. at 1060.
Although in some cases the “process of a collective advise-
UNITED STATES v. AGUILAR-VERA 13025
ment followed by individual questioning may be sufficient to
determine ‘personally’ that each defendant understands his
rights before pleading guilty,” in that case “Escamilla was not
individually questioned until nearly two hours after the magis-
trate judge began his group advisement.” Id. Hence, “[h]aving
listened to the entire proceedings through a translator,
Escamilla may have found it quite difficult to recall the
court’s full advisement of rights over such a long gap of
time.” Id.
[2] Here, as in Escamilla-Rojas, there was a long delay
between the magistrate judge’s collective advisement and
Aguilar-Vera’s guilty plea—one hour, in this case. While the
time gap here was one hour as compared to two in Escamilla-
Rojas, the cause for concern is the same. Moreover, in this
case, the potential for confusion was compounded by the fact
that the collective advisement included multiple subgroups of
defendants, some of whom had written plea agreements and
some of whom did not. Likewise, some of the defendants
were charged with violating both 8 U.S.C. § 1325 and 8
U.S.C. § 1326, while others were just charged with violating
8 U.S.C. § 1325.
Finally, the magistrate judge began calling sub-groups of
defendants to the bench by announcing that the “next groups”
called would receive only fines unless she informed counsel
otherwise. Aguilar-Vera was part of the first sub-group called
in which defendants risked imprisonment, but the court did
not alert him to the change in possible consequences to his
guilty plea or modify the colloquy in any way from the groups
that preceded him.
[3] In Escamilla-Rojas, the defendant did not make a spe-
cific objection under Rule 11(b)(2), so we applied plain error
review and did not state whether Rule 11(b)(2) requires a
magistrate judge to ask explicitly whether the plea was know-
ing, voluntary, and free from coercion. 640 F.3d at 1061-62.
But whether or not that was required, the magistrate judge
13026 UNITED STATES v. AGUILAR-VERA
here did not even attempt to ascertain the voluntariness of
Aguilar-Vera’s plea. Rather, despite counsel’s specific
prompting for the magistrate to comply with this rule—
counsel stated “I would also ask that Your Honor make a
determination that his plea is knowing, intelligently, voluntar-
ily [sic]”—the magistrate still asked no questions to Aguilar-
Vera personally about this. As we have previously stated with
regard to Rule 11, “[t]his is not a case in which the district
judge merely failed to utter verbatim some magical words.
The required advisement was not given in any form.” United
States v. Graibe, 946 F.2d 1428, 1434 (9th Cir. 1991).
[4] Thus, we conclude that there were errors under both
Rule 11(b)(1) and 11(b)(2).
B.
[5] Because Aguilar-Vera objected to the violations of
Rule 11, we must determine whether the error affected
Aguilar-Vera’s substantial rights. If it did not, then the error
was harmless. Fed. R. Crim. P. 11(h). As we have said before,
“[u]ltimately, Rule 11 ‘exists to ensure that guilty pleas are
knowing and voluntary.’ ” Escamilla-Rojas, 640 F.3d at 1061
(quoting United States v. Pena, 314 F.3d 1152, 1157 (9th Cir.
2003)). More specifically, Rule 11(b)(1) serves to ensure that
the defendant knows and understands the rights he is giving
up and the consequences of entering a guilty plea. Rule
11(b)(2) serves to ensure that the defendant’s waiver of his
rights and acceptance of the consequences is wholly volun-
tary. In other words, Rule 11(b)(1) and (b)(2) address the
Supreme Court’s concern that “[i]gnorance, incomprehension,
coercion, terror, inducements, subtle or blatant threats might
be a perfect cover-up of unconstitutionality” in a conviction
by guilty plea. Boykin v. Alabama, 395 U.S. 238, 242-43
(1969). Because the magistrate judge did not comply with
Rule 11, the government bears the burden of identifying evi-
dence in the record that Aguilar-Vera’s guilty plea was, in
fact, both knowing and voluntary.
UNITED STATES v. AGUILAR-VERA 13027
[6] Here, the evidence in the record is sufficient to estab-
lish that the variance from Rule 11 did not affect Aguilar-
Vera’s substantial rights. Aguilar-Vera met with his lawyer
before the Operation Streamline proceeding. In written objec-
tions presented to the magistrate judge, Aguilar-Vera’s lawyer
noted that Aguilar-Vera “specifically requested to proceed at
the hearing set on December 9, 2009.” This evidence shows
that Aguilar-Vera wanted to enter his plea and get through the
process as soon as possible, as opposed to waiting for an indi-
vidualized hearing and trial. Moreover, early in the plea hear-
ing, the magistrate judge instructed the defendants to stand if
at any point they did not understand or wanted to talk to coun-
sel. Aguilar-Vera was in the room when this instruction was
given, and he did not stand during the group advisement.
When the magistrate judge asked him personally whether he
understood his previously explained rights, the charges
against him, and the potential penalties, he answered “yes.”
While the delay between the advisement and the individual
questioning does not satisfy Rule 11, it does provide some
evidence that Aguilar-Vera knew and understood the conse-
quences of his guilty plea. Finally, even though Aguilar-
Vera’s counsel properly objected to the procedure, Aguilar-
Vera’s counsel affirmatively represented that his client did not
want a new hearing to cure the error. In his written objections,
Aguilar-Vera, through counsel, stated that he “did not and is
not requesting an individual court hearing.” (Emphasis
added).
[7] This evidence, taken together, leaves us with no doubt
that Aguilar-Vera knew and understood the consequences of
a guilty plea, and that he voluntarily chose to enter the plea.
In sum, while the magistrate judge failed to comply with both
Rule 11(b)(1) and (b)(2), those errors did not affect Aguilar-
Vera’s substantial rights. Therefore, the errors were harmless.
IV.
Aguilar-Vera also claims that the procedures used by the
magistrate judge violated the Constitution’s Due Process
13028 UNITED STATES v. AGUILAR-VERA
Clause, but in a supplemental letter brief he conceded that the
due process claim is foreclosed by circuit precedent. See
United States v. Diaz-Ramirez, 646 F.3d 653, 657-58 (9th Cir.
2011). Aguilar-Vera presses the due process claim only to
preserve it in the event that Diaz-Ramirez is overruled or this
case is heard en banc or by the Supreme Court. We therefore
affirm the district court’s conclusion that there was no due
process violation. Aguilar-Vera is of course free to challenge
Diaz-Ramirez in a properly filed petition for rehearing en
banc or to challenge this decision in the U.S. Supreme Court.
AFFIRMED.