Agosto

dissenting.

I respectfully dissent.

Although I agree that the magistrate judge’s plea colloquy was inadequate, I do not agree that it affected Agosto’s “substantial rights,” as plain error review requires. 1 Agosto has not proven that he “did not understand the rights at issue when he entered his guilty plea.” 2 He signed a plea agreement in which he acknowledged (1) that he understood that an element of the offense is that he “knew that it was marijuana or some other prohibited drug;” and (2) that he drove a vehicle across the border that he “knew concealed marijuana.” These express acknowledgments by Agosto, in writing, with the assistance of counsel, sworn to by Agosto under penalty of perjury, avoid any harm to his substantial rights from the inadequacy of the colloquy.

. United States v. Minore, 292 F.3d 1109, 1118 (9th Cir.2002).

. Id. at 1119 .

. Id. ("In ascertaining the defendant’s understanding of the rights at issue, we are not restricted to the record of the plea colloquy-”)-

*620 MEMORANDUM *

Larry Agosto (“Agosto”) appeals his 130-month sentence and conviction following his guilty plea for importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960. During the plea colloquy, the magistrate judge misstated the mens rea requirement, “knowingly or intentionally” importing marijuana, 21 U.S.C. § 960 , by equating strong suspicion with knowledge or deliberate ignorance. See United States v. Jewell, 532 F.2d 697, 702-04 (9th Cir.1976) (en banc) (holding, in a case involving importation of a controlled substance, that “knowingly” does not require positive knowledge, but rather includes “deliberate ignorance”). After the magistrate misstated the mens rea requirement, Agosto admitted only suspicion, but neither knowledge nor deliberate ignorance, that the car he was driving contained marijuana. Because the plea must be vacated for failure to comply with Federal Rule of Criminal Procedure 11, we reverse and remand.

We review de novo whether the plea is valid. See United States v. Nunez, 223 F.3d 956, 958 (9th Cir.2000). We must determine whether Agosto’s “guilty plea failed to comply with the requirements of Rule 11 because the trial judge did not…