United States v. Gary William Minore, AKA Skip, United States of America v. Arthur Torsone, United States of America v. Prommateta Chinawat

ORDER; Dissent by Judge SCHWARZER.

ORDER

Judge B. Fletcher and Judge Fisher voted to deny appellee’s petition for panel rehearing. Judge Schwarzer voted to grant the petition for panel rehearing.

Appellee’s petition for panel rehearing, filed July 30, 2002, is DENIED.

Judge Schwarzer’s dissent from the denial of the petition for panel rehearing is attached.

dissenting:

I dissent from the denial of the government’s petition for panel rehearing, filed July 30, 2002. As the government points out, when the panel states that “for purposes of plain error review, a defendant’s substantial rights are affected by Rule 11 error where the defendant proves that the court’s error was not minor or technical and that he did not understand the rights at issue when he entered his guilty plea,” it parts ways with all of the circuits that have considered the issue, as well as its own precedents. The post-Apprendi decision in United States v. Martinez, 277 F.3d 517, 532 (4th Cir.2002), holds that to establish that defendant’s substantial rights were affected, he “must demonstrate that, absent the Rule 11 error, he would not have entered into the plea agreement.” Similarly the Fifth Circuit,…