United States v. Alberto Monzon

429 F.3d 1268 UNITED STATES of America, Plaintiff-Appellee, v. Alberto MONZON, Defendant-Appellant. No. 03-30497. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 14, 2005. Filed December 7, 2005. Catherine L. Floit, Seattle, WA, for the defendant-appellant. John McKay, United States Attorney, and Douglas B. Whalley, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, District Judge, Presiding. D.C. No. CR 02-0374-23 JCC. Before: TASHIMA, PAEZ, and CALLAHAN, Circuit Judges. TASHIMA, Circuit Judge. 1 Alberto Monzon appeals his conviction for possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924 (c). Monzon contends that the district court accepted his guilty plea in violation of Rule 11 of the Federal Rules of Criminal Procedure and that the error affected his substantial rights. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse. BACKGROUND 2 In November 2001, law enforcement officers began investigating a drug trafficking organization led by Juan…

Alberto Monzon appeals his conviction for possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924 (c). Monzon contends that the district court accepted his guilty plea in violation of Rule 11 of the Federal Rules of Criminal Procedure and that the error affected his substantial rights. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse.

BACKGROUND

In November 2001, law enforcement officers began investigating a drug trafficking organization led by Juan Godinez-Vasquez. Through a court-authorized wiretap, officers determined that Monzon was involved with that organization. Federal agents executed a search warrant at Monzon’s residence. Monzon was in bed at the time. The agents seized a loaded 9-millimeter semi-automatic handgun from under the bedcovers, $3,060 in cash from a coat in the closet, and 248.9 grams of heroin in an Enfamil baby formula can wrapped in electrical tape from the closet shelf.

Monzon was charged in three counts of a multi-count indictment with: (1) Count 1, conspiracy to distribute cocaine, heroin, and methamphetamine; (2) Count 20, possession of heroin with intent to distribute, in violation of…

dissenting:

I respectfully dissent.

The majority properly frames the issue before us. In order to obtain a reversal of conviction, Monzon must show a reasonable probability that but for the district court’s Rule 11 error, he would not have pled guilty to Count 21. Dominguez Benitez, 124 S.Ct. at 2338-39. Based on Monzon’s prior equivocation in accepting the plea agreement and the absence of evidence to support the “in furtherance” element of Count 21, the majority concludes it is reasonably probable that Monzon would have gone to trial on Count 21 and, therefore, finds reversible error. I disagree with the majority’s premises and conclusion.

The majority assumes that if Monzon had wanted to proceed to trial on Count 21, the government would have allowed him to do so without disturbing the dismissal of Count One and his guilty plea to Count 20. This simply ignores the nature of the plea-bargain process. In exchange for Monzon’s guilty plea to both Counts 20 and 21, the government dismissed Count One, which carried a ten year mandatory sentence. A conviction on all three counts would have resulted in a mandatory minimum prison sentence of 15 years. Thus, by entering a plea…