United States v. Ricardo Lomas

Appellant Ricardo Lomas (“Lomas”) appeals his conviction by guilty plea to assault on a federal officer in violation of 18 U.S.C. § 111 (a)(1), (b). He contends that the district court plainly erred when it rejected his plea agreement and failed to advise him pursuant to Rule 11(c)(5) of the Federal Rules of Criminal Procedure.

Lomas did not raise this claim at the sentencing hearing, and no plain error occurred because Lomas’s substantial rights were not affected. See United States v. Escamilla-Rojas, 640 F.3d 1055, 1061-62 (9th Cir.2011), petition for cert, filed, 81 U.S.L.W. 3161 (U.S. Feb. 14, 2012) (No. 11-8864). The district court properly advised Lomas pursuant to Rule 11(c)(5)(A) & (B) that it was rejecting the plea agreement and it gave Lomas the opportunity to withdraw his guilty plea. Although the district court did not advise Lomas, pursuant to Rule 11(c)(5)(C), that if he did not withdraw in his guilty plea, the disposition of his case might be less favorable to him than that contemplated by the plea agreement, this omission did not have any material effect on Lomas’s substantial rights.

The record demonstrates that Lomas knew the district court’s rejection of his…