Benitez

ORDER

Mandate shall be stayed pending the United States Supreme Court’s decision in United States v. Vonn, 224 F.3d 1152 (9th Cir.2000), cert. granted, 531 U.S. 1189 , 121 S.Ct. 1185 , 149 L.Ed.2d 102 (Feb. 26, 2001) (No. 00-973).

MEMORANDUM

The district court violated Federal Rule of Criminal Procedure 11(e)(2) by accepting Benitez’s guilty plea without informing him he could not withdraw his plea if the court rejected the sentencing recommendation in the plea agreement. The dispositive issue is whether the district court’s error was harmless.

A failure to comply strictly with Rule 11(e)(2) may be harmless if the record shows the defendant actually knew he would be bound by his plea regardless of the length of the sentence the court decided to impose. United States v. Graibe, 946 F.2d 1428, 1433 (9th Cir.1991). However, even if a written plea agreement states the defendant cannot withdraw his plea, “the reading of the plea agreement is no substitute for the rigid observance of Rule 11.” United States v. Kennell, 15 F.3d 134, 136 (9th Cir.1994). Inclusion in the plea agreement of a statement that Benitez could not withdraw his plea does not establish Benitez’s actual…