Case Information
*2
BEA, Circuit Judge:
On December 8, 2009, Defendant-Appellant Gilberto
Aguilar-Vera was arrested and charged with violating 8
U.S.C. § 1325, misdemeanor illegal entry by an alien. The
next day, Aguilar-Vera was brought before a magistrate judge
in federal court in Arizona for a guilty plea proceeding that
was part of Operation Streamline, which is “a procedure for
the taking of pleas en masse.”
United States v. Escamilla-
Rojas
,
On appeal, Aguilar-Vera contends that his plea violated
Federal Rule of Criminal Procedure 11(b)(2), which states
that “[b]efore accepting a plea of guilty or nolo contendere,
the court must address the defendant personally in open court
and determine that the plea is voluntary and did not result
from force, threats, or promises (other than promises in a plea
agreement).” We have several times before held that certain
aspects of group plea proceedings violate various provisions
of Rule 11, and we follow those precedents and again con-
clude there was Rule 11 error.
Escamilla-Rojas
, 640 F.3d at
1060;
United States v. Roblero-Solis
,
However, in Escamilla-Rojas —our last encounter with Operation Streamline in a published opinion—we held that the error was harmless. Here, again, we reach the same con- clusion. As we explain below, the fact that harmless error doctrine exists means that there are some errors, no matter how clear, that our court may not correct by vacating a con- viction. This is one of those errors.
I.
The facts of this case are uncontested. We recite them as stated by the district court, with minor modifications.
On December 8, 2009, Aguilar-Vera was arrested and charged with violating 8 U.S.C. § 1325, misdemeanor illegal entry by an alien. [1] On December 9, 2009, Aguilar-Vera was [1] That provision states that:
brought before a magistrate judge for a proceeding of Opera-
tion Streamline, which is “a procedure for the taking of pleas
en masse.”
Escamilla-Rojas
,
Here, Aguilar-Vera and sixty-eight other defendants were grouped together and each instructed to answer “present” if and when their names were called out. Aguilar-Vera answered from somewhere in the room. Attorneys for other defendants proceeded to announce their appearances, and Aguilar-Vera’s attorney announced his appearance for Aguilar-Vera as well as for four other defendants.
The magistrate judge then instructed all the defendants about the headphone equipment used to hear the interpreter and what to do if a malfunction should occur. Then, all defense counsel affirmed that their clients wished to plead Any alien who
(1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful conceal- ment of a material fact, shall, for the first commission of any such offense, be fined under title 18, United States Code, or impris- oned not more than 6 months, or both, and, for a subsequent com- mission of any such offense, be fined under title 18, United States Code, or imprisoned not more than 2 years, or both.
guilty to the illegal entry charge and that each defendant appeared competent.
The magistrate judge continued with the proceedings by advising all defendants en masse of their rights, the charge, elements of the offense, and the maximum penalties. She con- tinued to talk to the entire group when addressing those who had plea agreements, and she did not distinguish these defen- dants from the others. For instance, the district court issued the following en masse advisement:
Some of you have signed written plea agreements with the government. And according to the terms of those agreements, in exchange for your pleading guilty, the government will dismiss the — will dis- miss the felony offense of illegal reentry. The plea agreement also contains the number or the amount of time that the government wants me to give you as a sentence.
If you plead guilty, I will accept that plea agree- ment and I will give you the amount of time that is in the agreement with credit for any time you may have already served or been in custody this time. . . .
Most of you do not have written plea agreements with the government. And if I give you a sentence that you believe is illegal, you have a right to file an appeal with a higher judge or a higher court. That appeal must be filed within 14 days of today’s date. If you wish to file an appeal, discuss it with your lawyer. He or she will prepare the paperwork for the appeal and will represent you during the course of that appeal.
The defendants were then asked to stand if they wanted to have a trial, and none stood.
Next, the magistrate judge called the defendants to the bench in small groups. The magistrate judge said that she would be sentencing those called in “the next groups” to a fine and special assessment without imprisonment, unless she informed counsel otherwise.
About an hour after the en masse recitation of trial rights, the sixth group of defendants, including Aguilar-Vera, was called to the bench. At this time, the magistrate judge had the following personal exchange with Aguilar-Vera:
THE COURT: Mr. Gilberto Aguilar-Vera, sir, do you understand your rights to a trial as I explained them?
THE DEFENDANT: Yes.
THE COURT: Are you willing to give up those rights and plead guilty?
THE DEFENDANT: Yes.
THE COURT: Do you understand the charge against you?
THE DEFENDANT: Yes.
THE COURT: And do you understand the maximum penalties?
THE DEFENDANT: Yes.
THE COURT: Of what country are you a citizen, sir?
THE DEFENDANT: Mexico. THE COURT: On or about December 6 of this year, did you enter into southern Arizona at a point not a port of entry?
THE DEFENDANT: Yes.
THE COURT: How do you plead to illegal entry, sir, guilty or not guilty?
THE DEFENDANT: Guilty. Aguilar-Vera’s counsel immediately objected, and the mag- istrate told counsel that he could file written objections fol- lowing the proceeding. Counsel then stated “I would also ask that Your Honor make a determination that his plea is know- ing, intelligently, voluntarily [ sic ].” The magistrate said “I will do that, sir.”
The magistrate judge then questioned Aguilar-Vera’s coun- sel concerning Aguilar-Vera’s prior convictions. The govern- ment asked that Aguilar-Vera be imprisoned, and Aguilar- Vera was sentenced to 10 days in prison with credit for time served and a special assessment. Finally, the court had another brief additional colloquy with Aguilar-Vera:
THE COURT: Mr. Aguilar-Vera, is there anything you would like to say, sir?
THE DEFENDANT: I plead guilty.
THE COURT: Well, sir, is there anything you want to say other than you plead guilty?
THE DEFENDANT: That’s fine.
THE COURT: Thank you. Aguilar-Vera’s counsel timely filed written objections con- tending that the plea violated Federal Rule of Criminal Proce- dure 11(b)(1) and (b)(2), [2] but no ruling on the objection was ever made. Further, as the district court stated: “though the judgment was entered on January 6, 2010, it was signed December 9, 2009 meaning the written objection was not reviewed prior to judgment.”
Aguilar-Vera appealed the conviction before the magistrate to the district court, contending that the process violated Fed. R. Crim. P. 11(b)(1) and (b)(2). In the written objections, Aguilar-Vera, through counsel, stated that he “did not and is not requesting an individual court hearing.” Then counsel told the court that “Defendant specifically requested to proceed at the hearing set on December 9, 2009; counsel is obligated to follow his client’s directive and objects only to ensure that the hearing comports with constitutional, precedential, and statu- tory requirements.”
The district court found that Rule 11 was not violated, and it affirmed the conviction by guilty plea. Aguilar-Vera timely appeals.
II.
The Court reviews de novo a district court’s decision
regarding questions of law, including the sufficiency of a Rule
11 plea colloquy.
United States v. Ross
,
[2] Fed. R. Crim. P. 11(b)(1) says that “[b]efore the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands [several constitutional rights].”
Fed. R. Crim. P. 11(b)(2) says that “[b]efore accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).” The harmless error standard applies to errors preserved by objections raised during a plea proceeding. Fed. R. Crim. P. 11(h); Escamilla-Rojas , 640 F.3d at 1061. Under harmless error, “any variance from the requirements of [Rule 11] is harmless error if it does not affect substantial rights.” Fed. R. Crim. P. 11(h). The harmless error standard applies here, as the objections under both Rule 11(b)(1) and 11(b)(2) were preserved to the fullest extent allowed by the magistrate judge.
III.
We first consider whether there was error, and we conclude there was. We next consider whether the error requires rever- sal, and we conclude that it does not, because the error was harmless beyond a reasonable doubt.
A.
To determine whether there was error, our guide is
Escamilla-Rojas
, our most recent published encounter with
Operation Streamline. The defendant in that case pleaded
guilty following substantially similar procedures to those
here.
[1] We held that the Operation Streamline procedure vio- lated Rule 11(b)(1) on the facts of that case. Id. at 1060. Although in some cases the “process of a collective advise- ment followed by individual questioning may be sufficient to determine ‘personally’ that each defendant understands his rights before pleading guilty,” in that case “Escamilla was not individually questioned until nearly two hours after the magis- trate judge began his group advisement.” Id. Hence, “[h]aving listened to the entire proceedings through a translator, Escamilla may have found it quite difficult to recall the court’s full advisement of rights over such a long gap of time.” Id.
[2] Here, as in Escamilla-Rojas , there was a long delay between the magistrate judge’s collective advisement and Aguilar-Vera’s guilty plea—one hour, in this case. While the time gap here was one hour as compared to two in Escamilla- Rojas , the cause for concern is the same. Moreover, in this case, the potential for confusion was compounded by the fact that the collective advisement included multiple subgroups of defendants, some of whom had written plea agreements and some of whom did not. Likewise, some of the defendants were charged with violating both 8 U.S.C. § 1325 and 8 U.S.C. § 1326, while others were just charged with violating 8 U.S.C. § 1325.
Finally, the magistrate judge began calling sub-groups of defendants to the bench by announcing that the “next groups” called would receive only fines unless she informed counsel otherwise. Aguilar-Vera was part of the first sub-group called in which defendants risked imprisonment, but the court did not alert him to the change in possible consequences to his guilty plea or modify the colloquy in any way from the groups that preceded him.
[3]
In
Escamilla-Rojas
, the defendant did not make a spe-
cific objection under Rule 11(b)(2), so we applied plain error
review and did not state whether Rule 11(b)(2) requires a
magistrate judge to ask explicitly whether the plea was know-
ing, voluntary, and free from coercion.
[4] Thus, we conclude that there were errors under both Rule 11(b)(1) and 11(b)(2).
B.
[5]
Because Aguilar-Vera objected to the violations of
Rule 11, we must determine whether the error affected
Aguilar-Vera’s substantial rights. If it did not, then the error
was harmless. Fed. R. Crim. P. 11(h). As we have said before,
“[u]ltimately, Rule 11 ‘exists to ensure that guilty pleas are
knowing and voluntary.’ ”
Escamilla-Rojas
,
[6] Here, the evidence in the record is sufficient to estab- lish that the variance from Rule 11 did not affect Aguilar- Vera’s substantial rights. Aguilar-Vera met with his lawyer before the Operation Streamline proceeding. In written objec- tions presented to the magistrate judge, Aguilar-Vera’s lawyer noted that Aguilar-Vera “specifically requested to proceed at the hearing set on December 9, 2009.” This evidence shows that Aguilar-Vera wanted to enter his plea and get through the process as soon as possible, as opposed to waiting for an indi- vidualized hearing and trial. Moreover, early in the plea hear- ing, the magistrate judge instructed the defendants to stand if at any point they did not understand or wanted to talk to coun- sel. Aguilar-Vera was in the room when this instruction was given, and he did not stand during the group advisement. When the magistrate judge asked him personally whether he understood his previously explained rights, the charges against him, and the potential penalties, he answered “yes.” While the delay between the advisement and the individual questioning does not satisfy Rule 11, it does provide some evidence that Aguilar-Vera knew and understood the conse- quences of his guilty plea. Finally, even though Aguilar- Vera’s counsel properly objected to the procedure, Aguilar- Vera’s counsel affirmatively represented that his client did not want a new hearing to cure the error. In his written objections, Aguilar-Vera, through counsel, stated that he “did not and is not requesting an individual court hearing.” (Emphasis added).
[7] This evidence, taken together, leaves us with no doubt that Aguilar-Vera knew and understood the consequences of a guilty plea, and that he voluntarily chose to enter the plea. In sum, while the magistrate judge failed to comply with both Rule 11(b)(1) and (b)(2), those errors did not affect Aguilar- Vera’s substantial rights. Therefore, the errors were harmless.
IV.
Aguilar-Vera also claims that the procedures used by the
magistrate judge violated the Constitution’s Due Process
Clause, but in a supplemental letter brief he conceded that the
due process claim is foreclosed by circuit precedent.
See
United States v. Diaz-Ramirez
,
AFFIRMED.