dissenting:

Argo asserts that he relied on the district court’s Rule 11 advisement in entering his plea. The district court based its Rule 11 advisement on the premise that sentence enhancement under the Armed Career Criminal Act was impermissible. In entering his plea, Argo should have been able to rely on this advisement. Ninth Circuit precedent at that time required the district court to reject sentence enhancement. Both Argo and the district court reasonably relied on our circuit authority. Indeed, we also initially relied on our precedent to affirm the judgment of the district court.

The government petitioned for rehearing, however, and we deliberately chose to await the Supreme Court’s decision in Taylor v. United States, — U.S. —, 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990), before ruling on the petition. Though Argo’s case might have been disposed of before the Taylor Court changed the law of this circuit, we must now reverse the district court’s and our initial ruling in light of Taylor .

Argo objects at this stage that if Taylor controls his case, we ought to allow the withdrawal of his plea. I agree. We ought at least to mandate the district court on remand to consider whether Argo relied on the inapplicability of the Armed Career Criminal Act when entering his plea. If Argo’s reliance on the Rule 11 advisement is a factual issue, the district court and not we should determine it. It should go without saying, moreover, that if Argo relied on the Rule 11 advisement, he did so to his detriment and prejudice. Cf. Long v. United States, 883 F.2d 966, 968-69 (11th Cir.1989) (erroneous Rule 11 advisement made in good faith is not reversible error where defendant was not prejudiced).

It may appear at first blush that Argo has raised his reliance on the advisement too late for our consideration because he does so only at the petition for rehearing stage. See International Union of Bricklayers v. Jaska, Inc., 752 F.2d 1401 , 1404 (9th Cir.1985). I note, however, that we may consider an argument at any stage of the proceedings “to prevent manifest injustice.” Id. It is manifestly unjust to prevent Argo from withdrawing a plea premised on a valid district court ruling which we initially affirmed, and which, after almost a year of delay while we awaited Taylor , we now vacate.

I note too that Argo was the appellee in this case. He successfully defended the district court’s judgment with citation to controlling Ninth Circuit authority prior to the rehearing stage. We could hardly ask more of an appellee. If we avoid Argo’s reliance argument on the ground he did not raise it in his opening brief {see Bricklayers at 1404), we imply that appellees must argue every possible defense of a district court’s judgment or face the consequence that a valid argument might later receive no consideration when a panel decides to reverse itself at the rehearing stage. As we often remind litigants before us, we can affirm a judgment — as we did initially in Argo’s case — on any ground evident in the record or as a matter of law. We do not rely on appellees to raise every possible ground for affirmance. Nor should we penalize appellees at the rehearing stage for failing to do so.

I therefore respectfully dissent.