United States v. Carlos Dominguez Benitez AKA Carlos Dominguez

Appellant Carlos Dominguez Benitez (“Benitez”) appeals his conviction, entered upon a plea of guilty, and his 120 month sentence for conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846 . Benitez contends his conviction must be reversed because the district court failed to comply with Fed.R.Crim.P. 11(e)(2) by not informing him he could not withdraw his guilty plea if the court did not accept the sentencing recommendation set forth in the plea agreement. We agree and reverse.

I.

On May 28, 1999, Benitez was charged with conspiracy to possess with intent to distribute and possession with intent to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Benitez entered into a written type (B) plea agreement with the government in which he agreed to plead guilty to the charge of conspiracy to possess with irltent to distribute. This charge carried a base offense level of 32. However, the government stipulated to a two-level downward adjustment for the safety valve provision 1 and a three-level downward adjustment for acceptance of responsibility, resulting in an offense level of 27 and a Guideline…

dissenting:

I respectfully disagree with the Court’s analysis of the Rule 11(e)(2) issue now that the Supreme Court has decided United States v. Vonn, 535 U.S. 55 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 (2002). Vonn holds that when a defendant fails to object to a possible Rule 11 violation, the reviewing court must apply the plain error standard of review. Furthermore, Vonn instructs us to examine the record as a whole when conducting this review. Considering the cumulative effect of Benitez’s signed plea agreement and the questions posed to Benitez during the plea colloquy, no plain error attends his conviction and sentence. We should affirm.

Vonn overrules prior Ninth Circuit cases like United States v. Graibe, 946 F.2d 1428 (9th Cir.1991), which required us to find a Rule 11 violation if the transcript of the plea colloquy, when viewed by itself, did not provide proof that the defendant understood his fundamental rights that were waived by the plea agreement. Graibe, 946 F.2d at 1434 . Graibe and its progeny, to which the Court’s opinion tenaciously clings, held that a district court’s failure to inform a defendant that he could *1228 not withdraw his guilty plea, even if the…

310 F.3d 1221 UNITED STATES of America, Plaintiff-Appellee, v. Carlos DOMINGUEZ BENITEZ aka Carlos Dominguez, Defendant-Appellant. No. 00-50181. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 5, 2001. Filed November 25, 2002. COPYRIGHT MATERIAL OMITTED Myra D. Mossman, Santa Barbara, CA, for defendant-appellant Carlos Dominguez Benitez. Alejandro N. Mayorkas, United States Attorney, John C. Hueston, Assistant United States Attorney, Carmen R. Luege, Assistant United States Attorney, Santa Ana, CA, for plaintiff-appellee United States of America. John S. Gordon, United States Attorney, Ronald L. Cheng, Assistant United States Attorney, Wesley L. Hsu, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee United States of America. Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-99-00067-AHS-01. Before: BROWNING, REINHARDT, and TALLMAN, Circuit Judges. JAMES R. BROWNING, Circuit Judge. 1 Appellant Carlos Dominguez Benitez ("Benitez") appeals his conviction, entered upon a plea of guilty, and his 120 month sentence for conspiracy to…