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, sitting en banc, held

United States v. Johnson, 1 F.3d 296, 302 (5th Cir.1993) (en banc). The same principle was followed in United States v. Westcott, 159 F.3d 107, 113 (2d Cir.1998); Unit ed States v. Noriega-Millan, 110 F.3d 162, 167 (1st Cir.1997); United States v. McCarthy, 97 F.3d 1562 , 1575 (8th Cir.1996); United States v. Dewalt, 92 F.3d 1209, 1213-14 (D.C.Cir.1996); United States v. Padilla, 23 F.3d 1220, 1222 (7th Cir.1994); and United States v. Vaughn, 7 F.3d 1533, 1535 (10th Cir.1993). And this court, only recently, rejected a Rule 11 challenge to a plea, stating:

United States v. Littlejohn, 224 F.3d 960, 970 (9th Cir.2000). See also, United States v. Siu Kuen Ma, 290 F.3d 1002, 1005 (9th Cir.2002), stating, with reference to a Rule 11 error, that “[a] ‘plain error’ must be clear and obvious, ‘highly prejudicial’ and must affect ‘substantial rights.’ ” (quoting United States v. Olano, 507 U.S. 725, 732 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993)) (emphasis added); United States v. Castillo-Casiano, 198 F.3d 787, 790 (9th Cir.1999), stating that “in most cases, the third prong of the plain error test [affecting substantial rights] calls on the court of appeals to conduct a harmless error inquiry in order to determine if the error was prejudicial to the defendant.” (Emphasis added.)

Thus, the panel’s conclusion that the error affected Minore’s substantial rights without a determination that the error was prejudicial appears to be at odds with established law. I respectfully submit that the opinion should be revised as requested in the government’s petition.