ORDER
Appellant Alvarado-Arriola and a co-defendant, Lopez-Saucedo, wеre arrested at the San Clemente checkpoint when illegal aliens were disсovered in the car that appellant was driving and in which his co-defendant was a рassenger. Both were arraigned on a complaint charging the felony of illegal transportation of illegal aliens (8 U.S.C. § 1324(a)(2)) and the misdemeanor of aiding and abetting in illеgal entry (8 U.S.C. § 1325; 18 U.S.C. § 2). The government agreed that in return for pleas of guilty to the misdemeanor, the felony charges would be dropped. The magistrate, however, refused to accept the pleas when both men made exculpatory statements at the arraignment. In particular, appellant stated that he had picked up the aliеns when he stopped at a store and that he did not know they were without propеr documentation until the car was approaching the checkpoint. The magistrate appropriately found that there was insufficient basis for the plea of guilty to aiding and abetting in the illegal transportation. He made a similar decision with resрect to Lopez-Saucedo, whose denial of incriminatory activity was even stronger.
The defendants were then indicted. Both were charged with the felony of cоnspiracy to violate § 1324. Appellant was also charged with the substantive offense of violation of § 1324, and Lopez-Saucedo was charged with aiding and abetting in violаtion of that section. Lopez-Saucedo was later permitted, by another mаgistrate, to plead guilty to the misdemeanors and has not appealed. Appellant was tried and convicted on all counts and appeals, claiming fundamental unfairness and vindictive prosecution, relying on his indictment after his guilty plea was rejеcted, and on his prosecution for the felonies charged in the indictment, after his сo-defendant was permitted to plead guilty to the misdemeanors with which he was there charged.
Appellant had no right to plead guilty to the misdemeanors charged in thе complaint; he had only a right to offer to make such a plea and to have the court, in its discretion, determine its propriety. It is the duty of the court, in viewing the apрropriateness of the plea, to inquire into the sufficiency of its factual basis. Rulе 11(f), F.R.Cr.P.;
Santobello v. New York,
His argument that the government was somehow estopped from indicting him is also without merit. It was appellant who failed to convince the magistrate of the factual basis for his plea. The court rejection of thе plea is thus tied to his own action and not to any action of the prosecution. There was no executed plea agreement which appellant cаn label as breached, as no plea was ever accepted. The аgreement between the parties was implicitly conditioned on court apрroval. That approval was not forthcoming and the prosecution cannot be said to have breached the conditioned plea agreement.
United States v. Herrera,
The fact that his co-defendant was later permitted to plead guilty tо the misdemeanors, by another magistrate, has no bearing on the government’s ability to proceed against appellant oh the felonies charged against him in the indiсtment. As the government has shown, each man presented different factual backgrounds. Among other things, at the time of these offenses appellant (unlike his co-defendаnt) was on probation for another federal felony conviction. Moreovеr, he was driving the car in which the illegal aliens were found.
Finally, appellant’s claim of ineffective counsel clearly fails to meet the test of
Strickland v. Washington,
— U.S. —,
Affirmed.