OPINION OF THE COURT
UNITED STATES V. DOMINGUEZ BENITEZ
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 03-167
UNITED STATES, PETITIONER
v. CARLOS
DOMINGUEZ BENITEZ
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 14, 2004]
Justice Souter delivered the
opinion of the Court.
Respondent claims the right to
withdraw his plea of guilty as a consequence of the District
Court’s failure to give one of the warnings required by Federal
Rule of Criminal Procedure 11. Because the claim of Rule 11 error
was not preserved by timely objection, the plain-error standard of
Rule 52(b) applies, with its requirement to prove effect on
substantial rights. The question is what showing must thus be made
to obtain relief for an unpreserved Rule 11 failing, and we hold
that a defendant is obliged to show a reasonable probability that,
but for the error, he would not have entered the plea.
I
In early May 1999, a confidential
informant working with law enforcement arranged through respondent
Carlos Dominguez Benitez (hereinafter Dominguez) to buy several
pounds of methamphetamine. First, the informant got a sample from
Dominguez, and a week later Dominguez went to a restaurant in
Anaheim, California, to consummate the sale in the company of two
confederates, one of whom brought a shopping bag with over a
kilogram of the drugs. The meeting ended when the informant gave a
signal and officers arrested the dealers. Dominguez confessed to
selling the methamphetamine and gave information about his supplier
and confederates.
A federal grand jury indicted
Dominguez on two counts: conspiracy to possess more than 500 grams
of methamphetamine, and possession of 1,391 grams of a
methamphetamine mixture, both with intent to distribute. On the
conspiracy count, Dominguez faced a statutory, mandatory minimum
sentence of 10 years, with a maximum of life. 84 Stat. 1260, 21 U.
S. C. §§841(b)(1)(A), 846. The District Court appointed
counsel, who began talking with the Government about a plea
agreement.
In September 1999, the District Court received
the first of several letters from Dominguez,[
Footnote 1] in which he asked for a new lawyer
and expressed discomfort with the plea agreement his counsel was
encouraging him to sign. On counsel’s motion, the court held a
status conference, at which Dominguez spoke to the judge. Again he
said he was dissatisfied with his representation, and wanted a
“better deal.” The court asked whether he was “talking about a
disposition … other than trial,” and Dominguez answered, “At no
time have I decided to go to any trial.” App. 46–47. Counsel spoke
to the same effect later in the proceeding, when he said that he
had “told [the prosecutor] all along that there won’t be a trial
[on the date set] based on my client’s representations that he
doesn’t want a trial.”
Id., at 51. The court explained to
Dominguez that it could not help him in plea negotiations, and
found no reason to change counsel.
Shortly after that, the parties agreed that
Dominguez would plead guilty to the conspiracy, and the Government
would dismiss the possession charge. The Government stipulated that
Dominguez would receive what is known as a safety-valve reduction
of two levels. See United States Sentencing Commission, Guidelines
Manual §§2D1.1(b)(6), 5C1.2 (Nov. 1999) (hereinafter
USSG).[
Footnote 2] The safety
valve was important because it would allow the court to invoke 18
U. S. C. §3553(f), authorizing a sentence below the otherwise
mandatory minimum in certain cases of diminished culpability, the
only chance Dominguez had for a sentence under 10 years. That
chance turned on satisfying five conditions, one going to
Dominguez’s criminal history, which the agreement did not address.
The agreement did, however, warn Dominguez that it did not bind the
sentencing court, and that Dominguez could not withdraw his plea if
the court did not accept the Government’s stipulations or
recommendations. At a hearing the next day, Dominguez changed his
plea to guilty. In the plea colloquy, the court gave almost all the
required Rule 11 warnings, including the warning that the plea
agreement did not bind the court, but the judge failed to mention
that Dominguez could not withdraw his plea if the court did not
accept the Government’s recommendations. See Fed. Rule Crim. Proc.
11(c)(3)(B).[
Footnote 3]
When the Probation Office subsequently issued
its report, it found that Dominguez had three prior convictions,
two of them under other names, which neither defense counsel nor
the prosecutor had known at the time of the plea negotiations. The
upshot was that Dominguez was ineligible for the safety valve, and
so had no chance to escape the sentence of 10 years. After
receiving two more letters from Dominguez complaining about the
quality of counsel’s representation, the District Court sentenced
Dominguez to the mandatory minimum. At the sentencing hearing, all
counsel told the court that they had thought Dominguez might at
least have been eligible for the safety-valve mitigation, but
agreed that with three convictions, he was not. Dominguez told the
court that he had “never had any knowledge about the points of
responsibility, the safety valve, or anything like that.” App. 109.
The court replied that in light of the “lengthy change of plea
proceedings” it was “difficult … to accept what” Dominguez said.
Id., at 112.
On appeal, Dominguez argued that the District
Court’s failure to warn him, as Rule 11(c)(3)(B) instructs, that he
could not withdraw his guilty plea if the court did not accept the
Government’s recommendations required reversal. After waiting for
United States v.
Vonn, 535 U. S. 55 (2002), a divided panel of
the Court of Appeals for the Ninth Circuit agreed, 310 F. 3d
1221 (2002), and cited
United States v.
Olano, 507 U. S. 725 (1993), in applying the
plain-error standard. The court held that the District Court had
indeed erred; and that the error was plain, affected Dominguez’s
substantial rights, and required correction in the interests of
justice.
To show that substantial rights were affected,
the Court of Appeals required Dominguez to “prove 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.” 310 F. 3d,
at 1225.[
Footnote 4] The court
rejected the Government’s arguments that the written plea agreement
or the District Court’s other statements in the plea colloquy
sufficiently advised Dominguez of his rights, given Dominguez’s
inability to speak English and the assurances of both counsel that
he would likely qualify under the safety-valve provision. Judge
Tallman dissented, with the warning that the majority’s analysis
followed neither
Vonn nor Circuit precedent. 310
F. 3d, at 1227–1228.
We granted certiorari, 540 U. S. ___ (2003),
on the question “[w]hether, in order to show that a violation of
Federal Rule of Criminal Procedure 11 constitutes reversible plain
error, a defendant must demonstrate that he would not have pleaded
guilty if the violation had not occurred.” Pet. for Cert. I. We now
reverse.
II
A
Because the Government agreed to
make a nonbinding sentencing recommendation, Rule 11(c)(3)(B)
required the court to “advise the defendant that the defendant has
no right to withdraw the plea if the court does not follow the
recommendation or request.” Rule 11, however, instructs that not
every violation of its terms calls for reversal of conviction by
entitling the defendant to withdraw his guilty plea. “A variance
from the requirements of this rule is harmless error if it does not
affect substantial rights.” Fed. Rule Crim. Proc. 11(h).[
Footnote 5]
In
Vonn, we considered
the standard that applies when a defendant is dilatory in raising
Rule 11 error, and held that reversal is not in order unless the
error is plain. 535 U. S., at 63; see
Olano,
supra, at 731–737. Although we explained that in assessing
the effect of Rule 11 error, a reviewing court must look to the
entire record, not to the plea proceedings alone,
Vonn,
supra, at 74–75, we did not formulate the standard for
determining whether a defendant has shown, as the plain-error
standard requires,
Olano,
supra, at 734–735, an
effect on his substantial rights.
B
It is only for certain structural
errors undermining the fairness of a criminal proceeding as a whole
that even preserved error requires reversal without regard to the
mistake’s effect on the proceeding. See
Arizona v.
Fulminante, 499 U. S. 279, 309–310
(1991) (giving examples). Dominguez does not argue that either Rule
11 error generally or the Rule 11 error here is structural in this
sense.[
Footnote 6]
Otherwise, relief for error is
tied in some way to prejudicial effect, and the standard phrased as
“error that affects substantial rights,” used in Rule 52, has
previously been taken to mean error with a prejudicial effect on
the outcome of a judicial proceeding. See
Kotteakos v.
United States, 328 U. S. 750 (1946). To
affect “substantial rights,” see 28 U. S. C. §2111, an error
must have “substantial and injurious effect or influence in
determining the … verdict.”
Kotteakos,
supra, at
776.[
Footnote 7] In cases where
the burden of demonstrating prejudice (or materiality) is on the
defendant seeking relief, we have invoked a standard with
similarities to the
Kotteakos formulation in requiring the
showing of “a reasonable probability that, but for [the error
claimed], the result of the proceeding would have been different.”
United States v.
Bagley,
473 U. S. 667, 682
(1985) (opinion of Blackmun, J.) (adopting the prejudice standard
of
Strickland v.
Washington, 466 U. S. 668, 694
(1984), for claims under
Brady v.
Maryland, 373 U. S. 83 (1963) (internal quotation
marks omitted)); 473 U. S., at 685 (White, J., concurring in part
and concurring in judgment) (same).[
Footnote 8]
No reason has appeared for treating the phrase
“affecting substantial rights” as untethered to a prejudice
requirement when applying
Olano to this nonstructural
error, or for doubting that
Bagley is a sensible model to
follow. As
Vonn makes clear, the burden of establishing
entitlement to relief for plain error is on the defendant claiming
it, and for several reasons, we think that burden should not be too
easy for defendants in Dominguez’s position. First, the standard
should enforce the policies that underpin Rule 52(b) generally, to
encourage timely objections and reduce wasteful reversals by
demanding strenuous exertion to get relief for unpreserved error.
See
Vonn, 535 U. S., at 73. Second, it should respect the
particular importance of the finality of guilty pleas, which
usually rest, after all, on a defendant’s profession of guilt in
open court, and are indispensable in the operation of the modern
criminal justice system. See
United States v.
Timmreck,
441 U. S. 780, 784 (1979). And, in
this case, these reasons are complemented by the fact, worth
repeating, that the violation claimed was of Rule 11, not of due
process.
We hold, therefore, that a defendant who seeks
reversal of his conviction after a guilty plea, on the ground that
the district court committed plain error under Rule 11, must show a
reasonable probability that, but for the error, he would not have
entered the plea. A defendant must thus satisfy the judgment of the
reviewing court, informed by the entire record, that the
probability of a different result is “ ‘sufficient to
undermine confidence in the outcome’ ” of the proceeding.
Strickland,
supra, at 694;
Bagley,
supra, at 682 (opinion of Blackmun, J.).[
Footnote 9]
C
What we have already said points
to why the test applied by the Court of Appeals in this case fell
short. Its first element was whether the error was “minor or
technical,” 310 F. 3d, at 1225, a phrase it took from
United States v.
Graibe, 946 F. 2d 1428 (CA9
1991), which in turn found it in the 1983 commentary that
accompanied the amendment to Rule 11(h). 946 F. 2d, at 1433.
But this element requires no examination of the effect of the
omitted warning on a defendant’s decision, a failing repeated to a
significant extent by the second element of the Ninth Circuit’s
test, taken from
United States v.
Minore, 292
F. 3d 1109 (CA9 2002), which asks whether the defendant
understood “the rights at issue when he entered his guilty plea.”
310 F. 3d, at 1225. True, this enquiry gets closer than the
first to a consideration of the likely effect of Rule 11 error on
the defendant’s decision to plead; assessing a claim that an error
affected a defendant’s decision to plead guilty must take into
account any indication that the omission of a Rule 11 warning
misled him. But the standard of the Court of Appeals does not allow
consideration of any record evidence tending to show that a
misunderstanding was inconsequential to a defendant’s decision, or
evidence indicating the relative significance of other facts that
may have borne on his choice regardless of any Rule 11
error.[
Footnote 10]
Relevant evidence that the Court
of Appeals thus passed over in this case included Dominguez’s
statement to the District Court that he did not intend to go to
trial, and his counsel’s confirmation of that representation, made
at the same hearing. The neglected but relevant considerations also
included the implications raised by Dominguez’s protests at the
sentencing hearing. He claimed that when he pleaded guilty he had
“never had any knowledge about the points of responsibility, the
safety valve, or anything like that.” App. 109. These statements,
if credited, would show that Dominguez was confused about the law
that applied to his sentence, about which the court clearly
informed him, but they do not suggest any causal link between his
confusion and the particular Rule 11 violation on which he now
seeks relief.
Other matters that may be relevant but escape
notice under the Ninth Circuit’s test are the overall strength of
the Government’s case and any possible defenses that appear from
the record, subjects that courts are accustomed to considering in a
Strickland or
Brady analysis. When the record
made for a guilty plea and sentencing reveals evidence, as this one
does, showing both a controlled sale of drugs to an informant and a
confession, one can fairly ask a defendant seeking to withdraw his
plea what he might ever have thought he could gain by going to
trial. The point of the question is not to second-guess a
defendant’s actual decision; if it is reasonably probable he would
have gone to trial absent the error, it is no matter that the
choice may have been foolish. The point, rather, is to enquire
whether the omitted warning would have made the difference required
by the standard of reasonable probability; it is hard to see here
how the warning could have had an effect on Dominguez’s assessment
of his strategic position. And even if there were reason to think
the warning from the bench could have mattered, there was the plea
agreement, read to Dominguez in his native Spanish, which
specifically warned that he could not withdraw his plea if the
court refused to accept the Government’s recommendations. This
fact, uncontested by Dominguez, tends to show that the Rule 11
error made no difference to the outcome here.
* * *
We reverse the judgment of the
Court of Appeals and remand the case for further proceedings
consistent with this opinion.
It is so ordered.
Footnote 1
Dominguez speaks and writes Spanish, not
English. A certified translator was present for the hearings in
court we describe, and for the plea agreement. Some of the letters
are in English, and the record does not show who translated them or
assisted Dominguez in writing them.
Footnote 2
The agreement also contemplated that
Dominguez’s total offense level under the Guidelines would be 27,
after considering the safety valve and a downward adjustment for
acceptance of responsibility. Assuming so, and assuming he had no
(or minimal) criminal history, his sentence could have been as low
as 70 months. See USSG ch. 5, pt. A (sentencing table).
Footnote 3
At the time of the plea hearing, the
requirement appeared at Federal Rule of Criminal Procedure
11(e)(2). It has not changed in substance. We refer to the current
Rule in the text of this opinion, and do likewise for Rules 11(h)
and 52(b), each of which has also received a stylistic
amendment.
Footnote 4
Other Courts of Appeals employed different
tests. See n. 8,
infra.
Footnote 5
Congress gave the courts this instruction in
1983, in partial response to this Court’s decision in
McCarthy v.
United States, 394 U. S. 459 (1969),
which it felt had caused too many reversals for reasons that were
too insubstantial. See
United States v.
Vonn,
535 U. S. 55, 66–71 (2002) (discussing
the history of Rule 11(h)).
Footnote 6
The argument, if made, would not prevail. The
omission of a single Rule 11 warning without more is not colorably
structural. Cf.
United States v.
Timmreck, 441 U. S. 780, 783–784 (1979) (holding
that Rule 11 error without more is not cognizable on collateral
review).
Footnote 7
When the Government has the burden of
addressing prejudice, as in excusing preserved error as harmless on
direct review of the criminal conviction, it is not enough to
negate an effect on the outcome of the case. See
Chapman
v.
California, 386 U. S. 18, 24 (1967)
(“[T]he court must be able to declare a belief that [constitutional
error] was harmless beyond a reasonable doubt”). When the
Government has the burden of showing that constitutional trial
error is harmless because it comes up on collateral review, the
heightened interest in finality generally calls for the Government
to meet the more lenient
Kotteakos standard.
Brecht v.
Abrahamson, 507 U. S. 619, 638
(1993). If the burden is on a defendant to show prejudice in the
first instance, of course, it would be easier to show a reasonable
doubt that constitutional error affected a trial than to show a
likely effect on the outcome or verdict.
Footnote 8
This standard is similar to one already
applied by some Courts of Appeals, though those courts have not
drawn a direct connection to
Strickland and
Bagley, and in some cases understood themselves to be
reviewing for harmless, rather than plain, error. See
United
States v.
Martinez, 289 F.3d 1023, 1029 (CA7 2002)
(on plain-error review, asking “whether any Rule 11 violations
would have likely affected [the defendant’s] willingness to plead
guilty”); see also
United States v.
Johnson, 1
F. 3d 296, 302 (CA5 1993) (en banc) (on harmless-error review,
asking “whether the defendant’s knowledge and comprehension of the
full and correct information would have been likely to affect his
willingness to plead guilty”); cf.
United States v.
Olano, 507 U. S. 725, 734–735 (1993) (the
main difference as to substantial rights in the harmless- and
plain-error analyses is that the burden of persuasion shifts from
Government to defendant).
Footnote 9
One significant difference, however, between
Rule 11 claims and claims under
Strickland and
Brady v.
Maryland, 373 U. S. 83 (1963), is that the latter
may be raised in postconviction proceedings such as a petition for
habeas corpus, or a motion to vacate a sentence under 28 U.
S. C. §2255. Those proceedings permit greater development of
the record. See
Massaro v.
United
States, 538 U. S. 500 (2003)
(
Strickland claims are not procedurally defaulted when
brought for the first time on §2255, because of the advantages of
that form of proceeding for hearing such cases). For Rule 11
claims, by contrast, that way is open only in the most egregious
cases.
Timmreck,
supra; see also
Vonn,
535 U. S., at 64 (noting that Rule 11(h) was not meant to disturb
Timmreck). A defendant will rarely, if ever, be able to
obtain relief for Rule 11 violations under §2255; and relief on
direct appeal, given the plain-error standard that will apply in
many cases, will be difficult to get, as it should be. Cf.
United States v.
Raineri, 42 F. 3d 36, 45
(CA1 1994) (Boudin, J.) (“[J]ust as there are many fair trials but
few perfect ones, so flaws are also to be expected in Rule 11
proceedings”).
Our rule does not, however, foreclose relief
altogether. The reasonable-probability standard is not the same as,
and should not be confused with, a requirement that a defendant
prove by a preponderance of the evidence that but for error things
would have been different. See
Kyles v.
Whitley, 514 U. S. 419, 434
(1995).
Footnote 10
This is another point of contrast with the
constitutional question whether a defendant’s guilty plea was
knowing and voluntary. We have held, for example, that when the
record of a criminal conviction obtained by guilty plea contains no
evidence that a defendant knew of the rights he was putatively
waiving, the conviction must be reversed.
Boykin v.
Alabama, 395 U. S. 238, 243
(1969). We do not suggest that such a conviction could be saved
even by overwhelming evidence that the defendant would have pleaded
guilty regardless.
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