Appellant in this case, Gerardo Luna-Orosco, fully intended to enter a plea of guilty to the crime of conspiracy to transport illegal aliens in violation of 8 U.S.C. § 1324(a)(l)(A)(v)(I). He was ordered convicted and sentenced to time served. He now seeks to vacate that conviction because a review of the full record of the Rule 11 proceedings reveals that he never formally entered a guilty plea. The record, however, also shows that the defendant was fully apprised of the rights he was waiving by pleading guilty, that he personally acknowledged the factual basis for the conviction, that he expressed remorse for the crime he had committed, and that he received a more lenient sentence in return for sparing the district court the time and expense of trial. We affirm because on the basis of a review of the entire record, there was no plain error.
See United States v. Vonn,
The Rule 11 hearing began before a magistrate judge on September 18, 2001.
The Rule 11 proceeding resumed the next day before a district court judge who stated that he incorporated into that hearing all that had transpired the preceding day. Near the end of the proceeding, the attorney for the government asked, “Your honor, for the record, I take it you’re incorporating everything that happened yesterday?” The court responded, “Everything that happened yesterday afternoon ... in front of [the magistrate judge].”
The district court hearing focused upon establishing a factual basis. As the following colloquy illustrates, this was more than adequately accomplished:
THE COURT: [I]t’s my understanding that each of you were drivers of vehicles that were stopped or apprehended in a desert area near Ajo, Arizona.
Is that correct, Mr. Luna-Orosco?
THE DEFENDANT: Yes.
THE COURT: It’s my understanding, at least the government believes that because of the circumstances surrounding the vehicles, where you were found and some radio transmissions they believe that each of you were there to pick up some illegal aliens.
Is that a fair statement, Mr. Luna-Orosco?
THE DEFENDANT: Yes
THE COURT: Is that the reason that you were there, Mr. Luna-Orozco?
THE DEFENDANT: Yes.
THE COURT: Before you were there, before you went there, did you agree with someone that you would do this?
Mr. Luna-Orozco, did you agree with someone to do this?
THE DEFENDANT: Yes.
THE COURT: So it’s — I don’t care whether you knew each other before this situation occurred. That’s not the important point here. The point is, you have now each told me that you had agreed with someone that you were going down to this area to pick up illegal aliens.
Now, here’s my last question, I think. Was it your understanding or belief that in doing so you would help these illegal aliens to remain unlawfully in the country?
Did you think that your help would help them stay in the country, Mr. Luna-Orosco?
THE DEFENDANT: Yes.
At no point did anyone object or draw attention to the fact that none of the defendants had formally entered a plea of guilty.
At sentencing, the defendant acknowledged having reviewed the presentence report, which clearly stated that his conviction was based upon a plea of guilty. There was no objection at sentencing to any deficiency in the earlier Rule 11 pro
THE COURT: Each of you pled guilty to a charge of conspiracy to transport illegal aliens. I’m assuming that each of you believe that you are guilty of that particular offense, that you spoke to your attorneys in Spanish, that they have answered your questions, that they have discussed with you the presentence report and that you are satisfied with the services of your attorneys.Is that a correct assumption, Mr. Luna-Orosco?
THE DEFENDANT: Yes.
Luna-Orosco’s counsel spoke on his behalf to seek leniency in sentencing and Luna-Orosco himself spoke to express his remorse for committing the crime. Finally, in explaining the lenient sentence of time served, the court said: “You have pled guilty, you put the government to no expense at trial, you saved them some time and turmoil, so it’s worth a couple of months, I think.” Luna-Orosco was sentenced to time served and released from custody. This appeal followed.
Because there was no objection to the lack of a formal plea, we review for plain error.
See Vonn,
For an error to qualify as plain error, it must be “clear and obvious, highly prejudicial, and must affect substantial rights.”
United States v. Ma,
To prove prejudice, Luna-Orosco must show that his plea was either unknowing or involuntary, or that he would not have pled guilty had the district court asked, “How do you plead?” He is unable and has not attempted to do so. The record demonstrates an intent to plead that was knowing and voluntary, and there is nothing to suggest that Luna-Orosco might have entered anything other than a guilty plea had the question not been overlooked.
We therefore hold that the district court’s failure in this case to ask the defendant to enter a formal guilty plea is not plain error requiring reversal. The only other circuit to consider the issue reached a similar result.
See United States v. Grandia,
AFFIRMED.
