No. 00-973 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

ALPHONSO VONN 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

JAMES K. ROBINSON 

Assistant Attorney General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 

MICHAEL A. ROTKER 

Attorney 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTIONS PRESENTED 

1. Whether a district court’s failure to advise a 
counseled defendant at his guilty plea hearing that he 
has the right to the assistance of counsel at trial, as 
required by Federal Rule of Criminal Procedure 
11(c)(3), is subject to plain-error, rather than harmless- 
error, review on appeal when the defendant fails to 
preserve the claim of error in the district court. 

2. Whether, in determining if a defendant’s sub- 
stantial rights were affected by a district court’s 
deviation from the requirements of Federal Rule of 
Criminal Procedure 11(c)(3), the court of appeals may 
review only the transcript of the guilty plea colloquy, or 
whether it may also consider other parts of the official 
record. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Rules involved ................................................................................ 
2 

Statement ........................................................................................ 3 

Reasons for granting the petition ............................................... 
11 

Conclusion ....................................................................................... 24 

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
11a 

Appendix C ..................................................................................... 
23a 

TABLE OF AUTHORITIES 

Cases: 

Blackledge v. Allison, 431 U.S. 63 (1977) .......................... 

22 

Johnson v. United States, 520 U.S. 461 (1997) ................. 

17 

McCarthy v. United States, 394 U.S. 459 (1969) .......... 

15, 18 

Mississippi Publ’g Corp. v. Murphree, 326 U.S. 

438 (1946) ................................................................................. 

21 

Nogales v. United States, petition for cert. 

pending, No. 00-5231 (filed July 17, 2000) ......................... 

12 

Santobello v. New York, 404 U.S. 257 (1971) .................... 

22 

Torres v. Oakland Scavenger Co., 487 U.S. 312 

(1988) ........................................................................................ 21 

United States v. Bashara, 27 F.3d 1174 (6th Cir.), 

cert. denied, 513 U.S. 1115 (1995) ....................................... 

12 

United States v. Cross, 57 F.3d 588 (7th Cir.), 

cert. denied, 516 U.S. 955 (1995) ......................................... 

12 

United States v. Cuevas-Andrade, No. 99-10976, 

2000 WL 165821 (Nov. 3, 2000) ........................................... 

13 

United States v. Gandia-Maysonet, 227 F.3d 1 

(1st Cir. 2000) ........................................... 

12, 13, 14, 15, 16, 18 

United States v. Gastelum, 16 F.3d 996 (9th Cir. 

1994) ......................................................................................... 10 

(III) 

IV 

Cases—Continued: Page 

United States v. Glinsey, 209 F.3d 386 (5th Cir.), 

cert. denied, 121 S. Ct. 282 (2000) ................................... 

12, 13 

United States v. Hyde, 520 U.S. 670 (1997) ....................... 

21 

United States v. Johnson, 1 F.3d 296 (5th Cir. 

1993) ......................................................................................... 19 

United States v. Jones, 143 F.3d 1417 (11th Cir. 

1998) ......................................................................................... 19 

United States v. Lovett, 844 F.2d 487 (7th Cir. 

1988) ......................................................................................... 19 

United States v. Lyons, 53 F.3d 1321 (D.C. Cir. 

1995) .......................................................................... 

8, 12, 16, 19 

United States v. Maher, 108 F.3d 1513 (2d Cir. 

1997) ......................................................................................... 19 

United States v. McCarthy, 99 F.3d 383 (11th Cir. 

1996) ......................................................................................... 17 

United States v. Odedo, 154 F.3d 937 (9th Cir. 

1998) .................................................................... 

7, 8, 10, 12, 14 

United States v. Olano, 507 U.S. 725 

(1993) ................................................................. 

13, 14, 15, 16, 18 

United States v. Quinones, 97 F.3d 473 (11th Cir. 

1996) ..................................................................................... 

12, 13 

United States v. Raineri, 42 F.3d 36 (1st Cir. 

1994), cert. denied, 515 U.S. 1126 (1995) ........................... 

17 

United States v. Saxena, 229 F.3d 1 (1st Cir. 

2000) ......................................................................................... 14 

United States v. Sells Eng’g, Inc., 463 U.S. 418 

(1983) ........................................................................................ 21 

United States v. Wright, 930 F.2d 808 (10th Cir. 

1991) ......................................................................................... 13 

United States v. Young, 470 U.S. 1 (1985) ......................... 

20 

Wainwright v. Sykes, 433 U.S. 72 (1977) ........................... 

14 

Statutes and rules: 

18 U.S.C. 2 .................................................................................. 

3 

18 U.S.C. 371 .............................................................................. 
3 

18 U.S.C. 924(c) ......................................................................... 3, 4 

V 

Statutes and rules—Continued: 
Page 

18 U.S.C. 2113 ............................................................................ 
4 

18 U.S.C. 2113(a) ....................................................................... 
3 

18 U.S.C. 2113(d) ....................................................................... 
3 

Fed. R. App. P. 41(d)(2) ........................................................... 

11 

Fed. R. Crim. P.: 

Rule 6(e) (advisory committee’s note) ............................... 

21 

Rule 11 ............................................................................. 

passim 

Rule 11(c) ........................................................................ 

2, 11, 18 

Rule 11(c)(1) ............................................................................ 

13 

Rule 11(c)(2) ............................................................................ 

6 

Rule 11(c)(3) ...................................................................... 

6, 7, 10 

Rule 11(e)(2) ........................................................................... 

14 

Rule 11(h) ............................................................. 

2, 8, 10, 15, 20 

Rule 11(h) advisory committee’s note (1983 

Amendment) .................................................................. 

15, 20 

Rule 32(e) (advisory committee’s note (1983 

Amendment) ...................................................................... 21 

Rule 52 ................................................................................... 

2, 15 

Rule 52(a) (advisory committee’s note) ............................. 

20 

Rule 52(b) ................................................................................ 7 

In the Supreme Court of the United States 

No. 00-526 

UNITED STATES OF AMERICA, PETITIONER 

v. 

ALPHONSO VONN 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the United States 
of America, respectfully petitions for a writ of certiorari 
to review the judgment of the United States Court of 
Appeals for the Ninth Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a- 
10a) is reported at 224 F.3d 1152. A prior opinion of the 
court of appeals, which was withdrawn on rehearing 
(App., infra, 11a-22a), is reported at 211 F.3d 1109. 

JURISDICTION 

The initial judgment of the court of appeals was 
entered on April 20, 2000. The judgment of the court of 
appeals on rehearing was entered on September 14, 
2000. The jurisdiction of this Court is invoked under 28 
U.S.C. 1254(1). 

(1) 

2 

RULES INVOLVED 

1. Rule 11(c) of the Federal Rules of Criminal 
Procedure, titled “Advice to Defendant,” provides, in 
pertinent part: 

Before accepting a plea of guilty or nolo con- 
tendere, the court must address the defendant 
personally in open court and inform the defendant 
of, and determine that the defendant understands, 
the following: 

* * * * * 

(3) that the defendant has the right to plead 
not guilty or to persist in that plea if it has 
already been made, the right to be tried by a 
jury and at that trial the right to the assistance 
of counsel, the right to confront and cross- 
examine adverse witnesses, and the right 
against compelled self-incrimination[.] 

2. Rule 11(h) of the Federal Rules of Criminal Pro- 
cedure, titled “Harmless Error,” provides: “Any vari- 
ance from the procedures required by this rule which 
does not affect substantial rights shall be disregarded.” 

3. Rule 52 of the Federal Rules of Criminal Proce- 
dure, titled “Harmless Error and Plain Error,” pro- 
vides: 

(a) HARMLESS ERROR. Any error, defect, ir- 
regularity or variance which does not affect sub- 
stantial rights shall be disregarded. 

(b) PLAIN ERROR. Plain errors or defects 
affecting substantial rights may be noticed although 
they were not brought to the attention of the court. 

3 

STATEMENT 

Following guilty pleas, respondent was convicted in 
the United States District Court for the Central 
District of California on one count of conspiracy to 
commit bank robbery, in violation of 18 U.S.C. 371; one 
count of aiding and abetting armed bank robbery, in 
violation of 18 U.S.C. 2113(a) and (d) and 18 U.S.C. 2; 
and one count of using and carrying a firearm during 
and in relation to a crime of violence, in violation of 18 
U.S.C. 924(c). App., infra, 2a-3a. Respondent was sen- 
tenced to 97 months’ imprisonment, to be followed by 
three years’ supervised release. Id. at 24a-25a. The 
court of appeals vacated respondent’s guilty pleas and 
sentence and remanded for further proceedings. Id. at 
10a. 

1. a. On February 27, 1997, respondent and two co- 
defendants robbed a bank in Long Beach, California. 
App., infra, 2a. Respondent was arrested shortly 
thereafter pursuant to a criminal complaint that 
charged him and his co-defendants with armed bank 
robbery and with using and carrying a firearm during 
and in relation to a crime of violence. Id. at 2a-3a. On 
February 28, 1997, respondent made his initial appear- 
ance on the complaint. At that appearance, the magis- 
trate judge advised the defendants who were present, 
including respondent, of their constitutional rights, 
including “the right to retain and to be represented by 
an attorney of your own choosing at each and every 
stage of the proceedings against you,” and, “if you 
cannot afford an attorney,” the right “to request that 
the court appoint an attorney to represent you.” Gov’t 
C.A. Supp. Ex. Rec. 4. Respondent orally confirmed 
that he had heard and understood his rights. Id. at 10. 
The magistrate then found that respondent was 

4 

indigent and appointed a Deputy Federal Public 
Defender to represent him. Id. at 10-11. 

On March 14, 1997, a grand jury returned a two-count 
indictment charging respondent with one count of 
armed bank robbery, in violation of 18 U.S.C. 2113, and 
one count of using and carrying a firearm during and in 
relation to that robbery, in violation of 18 U.S.C. 924(c). 
Resp. C.A. Ex. Rec. 1-3. On March 17, 1997, respondent 
appeared in court, represented by his appointed 
counsel, for his arraignment. The magistrate judge 
advised the defendants present, including respondent, 
of their constitutional rights, including the right “to be 
represented by counsel at all stages of the proceed- 
ings,” and also advised the defendants that, “[i]f you 
don’t have the money or means to hire an attorney, I 
will appoint an attorney to represent you without cost 
or expense to you.” Gov’t C.A. Supp. Ex. Rec. 16-17. 
Respondent’s counsel then provided the court with 
respondent’s signed “Statement of Defendant’s Consti- 
tutional Rights,” in which respondent acknowledged his 
constitutional right “to be represented by counsel at all 
stages of the proceedings against [him].” Id. at 24-25.1 
Respondent’s counsel also signed a statement at the 
end of that form indicating that counsel was “satisfied 
that [respondent] has read this Statement of Rights 

* * * and that [he] understands them.” Id. at 25. 
That document was filed in the record of the case. 
Resp. C.A. Ex. Rec. 70. 

b. At a May 12, 1997, status conference before the 
district judge, respondent, represented by the same 
court-appointed counsel who had represented him at his 

1 Because of a broken arm, respondent could not actually sign 
his name on this form; instead, he marked the signature line with 
the letter “X.” Gov’t C.A. Supp. Ex. Rec. 19, 25. 

5 

arraignment and at three earlier status conferences, 
indicated his intention to plead guilty to the bank 
robbery count and to proceed to trial on the firearm 
count. Resp. C.A. Ex. Rec. 12. The court clarified with 
respondent’s counsel that respondent’s position was 
that he participated in the robbery but that, contrary to 
the government’s contention, he did not use a firearm 
during the robbery. Id. at 13; App., infra, 16a-17a & 

n.3. The court then asked respondent’s counsel, in 
respondent’s presence, whether there was “any point in 
taking this plea” since “the jury is going to have to hear 
the whole case anyway * * * to figure out whether or 
not he used a gun.” Ibid. Respondent’s counsel reiter- 
ated that “my client’s desire [is] to plead guilty to [the 
bank robbery charge].” Ibid. 

The court then proceeded to engage in a colloquy 
with respondent, as required by Federal Rule of Crimi- 
nal Procedure 11, to ensure that respondent’s guilty 
plea was voluntary and intelligent and was supported 
by a factual basis. See Fed. R. Crim. P. 11. During the 
course of that colloquy, the court advised respondent 
that, by pleading guilty, he would be giving up various 
constitutional rights, including the right against self- 
incrimination, the right to a trial, the right to confront 
and cross-examine witnesses against him, and the right 
to present evidence on his own behalf at trial. Resp. 
C.A. Ex. Rec. 17. Respondent stated that he waived 
those rights. Ibid. The court did not expressly tell 
respondent at that time, however, that if he proceeded 
to trial, he would have the right to the assistance of 
counsel at that trial. Respondent’s counsel did not 
object to that deficiency. The court then accepted 
respondent’s guilty plea to the bank robbery charge. 
Id. at 20. At the conclusion of the hearing, the court 
informed counsel for both parties, in respondent’s 

6 

presence, that the firearm charge was scheduled for 
trial on June 10, 1997. Id. at 21; App., infra, 17a n.4. As 
a result of a scheduling conflict involving defense 
counsel, however, trial was later rescheduled to August 
12, 1997. See Resp. C.A. Ex. Rec. 72. 

c. On July 29, 1997, a three-count superseding in- 
dictment was returned charging respondent with bank 
robbery (to which he had already pleaded guilty), using 
and carrying a firearm during and in relation to a bank 
robbery, and a third count of conspiracy to commit bank 
robbery. Resp. C.A. Ex. Rec. 4-9. On September 3, 
1997, at a hearing, respondent stated his intention to 
plead guilty to the conspiracy and firearm counts. Id. at 
25-26. The court then again advised respondent that by 
pleading guilty he was giving up various constitutional 
rights, but it again omitted specific mention of the right 
to counsel at trial. Id. at 29-30. 

After the court determined that there was a factual 
basis for the guilty pleas, the Assistant United States 
Attorney stated to the court that she did not “remem- 
ber hearing the Court inform the defendant of his right 
to assistance of counsel.” App., infra, 3a. The court re- 
sponded that “I didn’t because [he] is represented by 
counsel.” Ibid.2 Respondent’s counsel raised no objec- 
tion to the court’s failure to advise respondent specifi- 
cally of the continuing right to the assistance of counsel 
at trial. The court then accepted respondent’s guilty 

2 Federal Rule of Criminal Procedure 11(c)(2) provides that the 
court must inform the defendant, “if the defendant is not repre- 
sented by an attorney, that the defendant has the right to be rep- 
resented by an attorney at every stage of the proceeding and, if 
necessary, one will be appointed to represent the defendant” (em- 
phasis added). Rule 11(c)(3), however, requires the court to pro- 
vide advice about the right “to the assistance of counsel” at trial 
without limiting the requirement to unrepresented defendants. 

7 

pleas on the conspiracy and firearm charges. Resp. 
C.A. Ex. Rec. 33. 

d. On May 14, 1998, respondent moved to withdraw 
his guilty plea on the firearms charge only, on the 
ground that it lacked a factual basis. The district court 
denied that motion. Resp. C.A. Ex. Rec. 58-59. Re- 
spondent did not move to withdraw his guilty pleas to 
the other charges. On June 22, 1998, respondent was 
sentenced to 97 months’ imprisonment. App., infra, 
23a-24a. 

2. On appeal, respondent argued for the first time 
that his guilty pleas on all three counts were invalid 
because, among other things, the district court had 
failed to advise him of his continuing right to the 
assistance of counsel at trial, as required by Rule 
11(c)(3), before accepting his guilty plea. Resp. C.A. Br. 
15-21. The court of appeals found respondent’s Rule 
11(c)(3) claim “dispositive,” App., infra, 13a n.1, and 
vacated respondent’s guilty pleas, id. at 22a. 

The court first observed that “[t]he Government 
correctly points out that we do not normally consider 
issues raised for the first time on appeal.” App., infra, 
15a. The court nonetheless rejected the government’s 
argument that respondent had forfeited his Rule 11 
claim, and held (ibid.) that the normal plain-error stan- 
dard of review applicable to claims of error not raised at 
trial, as set forth in Federal Rule of Criminal Procedure 
52(b), “does not apply to Rule 11 errors” because “Rule 
11 has its own review mechanism, which supersedes the 
normal waiver rule.” For that proposition, the court 
cited United States v. Odedo, 154 F.3d 937, 940 (9th Cir. 
1998), which had held that “the Rule 11(h) ‘harmless 
error’ standard applies to all Rule 11 errors, regardless 
of whether they were ever raised before the district 

8 

court.”3 Therefore, the court stated, the case turns on 
whether “the district court’s error was harmless.” 
App., infra, 15a. 

The court then noted that Rule 11(h) requires the 
court to “disregard variances from the colloquy that do 
not ‘affect substantial rights.’ ” 

App., infra, 15a (quot- 
ing Fed. R. Crim. P. 11(h)). According to the court, the 
“affect[ing] substantial rights” language of Rule 11(h) 
“mean[s] that we must inquire whether the defendant 
was aware of his rights despite the judge’s failure to 
advise him.” Ibid. Applying that standard, the court 
determined that the district court’s error was not harm- 
less because the record did not contain “unequivocal 
evidence” that respondent was aware that he had the 
continuing right to the assistance of counsel at trial. Id. 
at 16a-21a. The court of appeals rejected the govern- 
ment’s arguments that the district court’s statements 
at the May 12, 1997, status conference concerning the 
need for a jury trial on the firearm charge and the 
impending June 10, 1997, trial date (see pp. 4-6, supra), 
demonstrated respondent’s awareness that he would be 
represented by counsel at trial. App., infra, 16a-17a & 
nn.3-4. The court found those statements insufficiently 
clear to establish with confidence respondent’s aware- 
ness that he would be represented by counsel at trial. 
Id. at 18a. 
The court of appeals also noted that, at respondent’s 
September 3, 1997, guilty plea hearing, the prosecutor 

3 In Odedo, the Ninth Circuit rejected the government’s argu- 
ment that a Rule 11 claim of error is “waived,” and therefore 
subject only to plain-error review on appeal, if it is not preserved 
in the district court. The court instead agreed with the decision in 
United States v. Lyons, 53 F.3d 1321, 1322 n.1 (D.C. Cir. 1995), that 
such claims, even if not preserved, are reviewed for harmless error 
on appeal. See Odedo, 154 F.3d at 939-940. 

9 

had drawn the district court’s attention to the fact that 
it had not specifically advised respondent of his right to 
counsel at trial. The court of appeals “sympathize[d]” 
with the government’s “good faith effort” to address 
that deficiency below, but it determined that the 
transcript “does not yield the unequivocal evidence we 
would need before we could deem [respondent] aware 
of his continuing right to counsel at trial.” App., infra, 
18a-19a. 

3. The government filed a petition for panel 
rehearing, pointing out that the court’s harmless-error 
analysis failed to take into account other parts of the 
official record that evinced respondent’s awareness of 
his right to counsel at trial. In particular, the govern- 
ment pointed to respondent’s signed acknowledgment 
of his constitutional rights, as well as recent transcrip- 
tions of respondent’s initial appearance and arraign- 
ment proceedings at which respondent was specifically 
advised of his right to counsel at trial and stated that he 
understood his rights. Gov’t Pet. for Reh’g 9-10. The 
government also filed a motion to have those tran- 
scripts (which were part of the official district court 
record) made part of the record on appeal, and ex- 
plained that their consideration “is necessary and ap- 
propriate for the court to evaluate properly the record 
in this case.” See id. at 2 n.1, 9 n.4.4 Respondent filed a 

4 The government’s motion was accompanied by the prosecu- 
tor’s declaration, in which she explained that she first realized that 
the transcripts of respondent’s initial appearance and arraignment 
proceedings might reflect respondent’s awareness of his right to 
counsel at trial “[i]n preparation for and shortly before oral 
argument.” Decl. of Elaine Lu ¶ 4 (6/2/2000). The prosecutor did 
not order the transcripts at that time because of the impending 
oral argument, but did have occasion to order them in the course of 

10 

response to the petition for rehearing, in which he 
argued that the court was precluded from relying on 
those pre-plea materials under its decisions in United 
States v. Odedo, 154 F.3d 937 (9th Cir. 1998), and 
United States v. Gastelum, 16 F.3d 996 (9th Cir. 1994), 
which, according to respondent, limited the scope of 
Rule 11(h) harmless-error review to the four corners of 
the guilty plea hearing transcript. Resp. Opp. to Pet. 
for Reh’g 10-11. 

4. The panel withdrew its opinion and issued a new 
one, in which it again vacated respondent’s guilty pleas 
based on the Rule 11 violation. App., infra, 1a-10a. The 
court first reaffirmed that a defendant’s claim, raised 
for the first time on appeal, that the district court failed 
to provide him with part of the advice of rights required 
by Rule 11(c)(3) is reviewed for harmless error, rather 
than plain error. Id. at 5a-6a. The court also reaffirmed 
that the harmless-error analysis requires it to deter- 
mine “whether the defendant was aware of his rights 
despite the judge’s failure to advise him.” Id. at 6a. 

The court then held, based on its prior decisions in 
Gastelum and Odedo, that “we are limited to what the 
record of the plea proceeding contains” in conducting 
Rule 11(h) harmless-error analysis. App., infra, 6a.5 
Accordingly, the court stated, “we cannot consider the 

briefing a later motion by one of respondent’s co-defendants to join 
in respondent’s brief. Id. at ¶¶ 6-8. 

5 The government had argued in its appellate brief that the 
court should consider the entire record, not just the plea pro- 
ceeding, to make its prejudice inquiry. See Gov’t C.A. Br. 25-32. 
The government argued that Gastelum (on which Odedo had 
relied) stood for the proposition that an appellate court may con- 
sider only the plea proceeding to determine whether the district 
court complied with Rule 11, not that it is so limited in making the 
prejudice analysis. Id. at 28. 

11 

government’s claim that [respondent] learned of his 
right to counsel during earlier court proceedings” in 
this case. Id. at 6a-7a. Because the court had previ- 
ously concluded that the guilty plea hearing transcript 
did not unequivocally demonstrate that respondent was 
aware that he had the right to counsel at trial, and 
because it reaffirmed that conclusion on rehearing (id. 
at 7a-9a), it vacated respondent’s guilty pleas and 
remanded the case. Id. at 10a.6 

REASONS FOR GRANTING THE PETITION 

The court of appeals has held that a defendant’s claim 
that the district court failed to provide him with the 
complete advice required by Federal Rule of Criminal 
Procedure 11(c), raised for the first time on appeal, is 
not forfeited and—unlike other claims not raised in the 
district court—is subject to appellate review under a 
harmless-error standard that requires the government 
to prove that the defendant was otherwise aware of the 
omitted information. The court of appeals also held 
that, in determining whether a particular Rule 11 error 
affected a defendant’s substantial rights, the court of 
appeals may not look beyond the transcript of the guilty 
plea hearing. Each of those holdings contributes to an 
existing circuit conflict on a question of significant and 
recurring importance to the federal criminal justice 
system. Each holding is also incorrect. Accordingly, 
this Court should grant certiorari to review both 
aspects of the court of appeals’ decision.7 

6 Pursuant to the government’s unopposed motion under Fed- 
eral Rule of Appellate Procedure 41(d)(2), the court stayed the 
issuance of its mandate pending the filing of this petition for a writ 
of certiorari. 

7 The first question presented by this petition, concerning the 
applicable standard of review, is also presented in the pending cer- 

12 

1. a. The court of appeals ruled that claims of Rule 11 
error raised for the first time on appeal are reviewed 
under a harmless-error, rather than plain-error, stan- 
dard. That holding perpetuates and reinforces a diver- 
gence of opinion among the circuits on the standard of 
review governing such claims. The First, Sixth, 
Seventh, and Eleventh Circuits have clearly stated that 
they apply plain-error review in such circumstances. 
See United States v. Gandia-Maysonet, 227 F.3d 1, 5-6 
(1st Cir. 2000); United States v. Bashara, 27 F.3d 1174, 
1178-1179 (6th Cir. 1994), cert. denied, 513 U.S. 1115 
(1995); United States v. Cross, 57 F.3d 588, 590 (7th 
Cir.), cert. denied, 516 U.S. 955 (1995); United States v. 
Quinones, 97 F.3d 473, 475 (11th Cir. 1996). In contrast, 
the Ninth Circuit (in which this case arose), and the 
District of Columbia Circuit have stated that they apply 
harmless-error, rather than plain-error, review. App., 
infra, 5a (citing United States v. Odedo, 154 F.3d 937, 
940 (9th Cir. 1998)); United States v. Lyons, 53 F.3d 
1321, 1322 n.1 (D.C. Cir. 1995). 

The Fifth Circuit has stated that such cases are not 
governed by the plain-error standard, see United States 

v. Glinsey, 209 F.3d 386, 394 n.8, cert. denied, 121 S. Ct. 
282 (2000), but it has also stated that the defendant 

tiorari petition in Nogales v. United States, petition for cert. 
pending, No. 00-5231 (filed July 17, 2000). In our response (at 9-13) 
to the petition in Nogales, we have explained that this case pre- 
sents a more suitable vehicle for addressing the standard-of- 
review question for several reasons. Those reasons include the 
presence of the second question in this case, which independently 
warrants this Court’s review, the clarity of the court of appeals’ 
holding in this case that the harmless-error standard applies, and 
the fact that Nogales is an unpublished opinion. Accordingly, we 
have suggested that the petition in Nogales be held pending the 
Court’s disposition of this case. 

13 

“must * * * show that the district court’s variance 
affected his substantial rights,” id. at 394—suggesting 
that the defendant bears the burden of persuasion on 
the question of prejudice, which is consistent with 
plain-error review. See United States v. Olano, 507 
U.S. 725, 734 (1993) (explaining that an “important 
difference” between plain-error and harmless-error is 
“who bears the burden of persuasion with respect to 
prejudice”). The Fifth Circuit and the Ninth Circuit 
have also framed the nature of the prejudice inquiry 
quite differently. The Ninth Circuit in this case stated 
that the government was required to prove that 
respondent was otherwise aware of the constitutional 
rights that the district court omitted from its advice. 
See App., infra, 6a. The Fifth Circuit, however, has 
stated that, to show an effect on a defendant’s sub- 
stantial rights to establish prejudice, the defendant 
must show that the omitted information was “a material 
factor affecting the defendant’s decision to plead 
guilty.” United States v. Cuevas-Andrade, No. 99- 
10976, 2000 WL 1658211, at *2 (Nov. 3, 2000) (brackets 
omitted). Similarly, the Tenth Circuit has stated that 
the defendant must “show that knowledge of the omis- 
sion or variance from Rule 11 would have changed his 
decision to plead guilty.” United States v. Wright, 930 
F.2d 808, 810 (1991) (internal quotation marks and 
emphasis omitted). 

The existence of a circuit conflict concerning the ap- 
plicable standard of review is clear. The courts of 
appeals themselves have explicitly recognized the con- 
flict. See Gandia-Maysonet, 227 F.3d at 5; Quinones, 
97 F.3d at 475 n.3.8 This case, moreover, presents a 

8 Although the decisions in the courts of appeals have involved 
a wide array of Rule 11 claims, the courts have generally not 

14 

suitable vehicle for this Court to address the standard- 
of-review question. The court of appeals in this case 
clearly applied a harmless-error standard; that is, it 
required the government to prove that the error did 
not affect respondent’s substantial rights in that 
respondent was otherwise aware of his right to counsel. 
Equally clearly, the court rejected the government’s 
contention that respondent’s failure to raise the claim in 
the district court amounted to a waiver (or, more 
accurately, a forfeiture) of that claim. App., infra, 5a 
(citing Odedo, 154 F.3d at 940); cf. Olano, 507 U.S. at 
733 (distinguishing waiver from forfeiture). 

b. The court of appeals erred in holding that the 
harmless-error, rather than plain-error, standard 
should be applied in this case. The better reasoned 
approach, adopted by the majority of the circuits in 
reliance on well-settled forfeiture principles, applies the 
plain-error standard of review to Rule 11 claims not 
raised at trial. The rationale is clear: the raise-or- 
forfeit principle serves important interests of judicial 
economy and fairness. See Gandia-Maysonet, 227 F.3d 
at 5; cf. Wainwright v. Sykes, 433 U.S. 72, 88-89 (1977) 
(discussing the policies underlying a contemporaneous- 
objection rule). Those defendants who raise a claim of 
error in the district court in the first instance are 
entitled to have the government bear the burden of 

distinguished among the kinds of claims in fashioning the standard 
of review; rather, they have treated the applicable standard of 
review governing claims of Rule 11 error raised first in the court of 
appeals as a unitary one. For example, in United States v. Saxena, 
229 F.3d 1 (2000), the First Circuit recently held that its decision in 
Gandia-Maysonet, supra, holding that an unpreserved claim of 
Rule 11(c)(1) error is reviewed under a plain-error standard, 
“clearly indicates” that Saxena’s Rule 11(e)(2) claim of error like- 
wise “must survive plain-error review.” Id. at 8 n.2. 

15 

proving harmlessness. But “the bar rises—and the 
stiffer Olano plain-error test applies” to those defen- 
dants who forfeit their claim of error by failing to object 
before the district court, thereby stripping the trial 
court of any opportunity to resolve or cure the claimed 
error. Gandia-Maysonet, 227 F.3d at 5. 

The court of appeals employed a different, and we 
believe faulty, rationale in reaching its contrary con- 
clusion. It reasoned that Federal Rule of Criminal Pro- 
cedure 11(h)—which states that “[a]ny variance from 
the procedures required by this rule which does not 
affect substantial rights shall be disregarded”—“super- 
sede[d] the normal [Rule 52] waiver rule” in all cases of 
claimed Rule 11 error. App., infra, 5a. The court of 
appeals’ reliance on Rule 11(h) as a basis for departing 
from normal plain-error principles rests on a misunder- 
standing of the purpose of that Rule. 

Before the 1983 enactment of Rule 11(h), a number of 
courts of appeals had read this Court’s decision in 
McCarthy v. United States, 394 U.S. 459 (1969), to hold 
that all Rule 11 errors required reversal without a case- 
specific assessment of prejudice. Rule 11(h) “merely 
reject[ed] the extreme sanction of automatic reversal.” 
Fed. R. Crim. P. 11(h) advisory committee’s note (1983 
Amendment). Rule 11(h) is thus best understood not as 
rejecting the applicability of plain-error review when 
no objection is lodged, but rather as simply overturning 
McCarthy and requiring a case-by-case assessment into 
whether the error “affect[ ed] substantial 
rights”—similar to the case-by-case assessment 
required by Rule 52 of all other claims of error. See 
Gandia-Maysonet, 227 F.3d at 6 (so describing the 
“narrow purpose” of Rule 11(h)); see also Olano, 507 
U.S. at 731 (observing that “[n]o procedural principle is 
more familiar to this Court than that a constitutional 

16 

right, or a right of any other sort, may be forfeited in 
criminal as well as civil cases by the failure to make a 
timely assertion of the right before a tribunal having 
jurisdiction to determine it”) (internal quotation marks 
omitted). Accordingly, only a properly preserved Rule 
11 claim should be reviewed under a harmless-error 
standard on appeal; a Rule 11 claim not preserved in 
the district court should be reviewed under a plain- 
error standard. 

c. Closely related to the standard of appellate 
review is the question of the showing that must be 
made to establish whether the defendant’s substantial 
rights were affected by the trial court’s deviation from 
Rule 11. As we have noted (pp. 8-9, 11, supra), the 
court of appeals stated in this case that the government 
was required to prove, under a harmless-error analysis, 
that respondent was aware of his right to counsel at 
trial. The Fifth and Tenth Circuits have stated, 
however, that the defendant must show that the error 
affected his decision to plead guilty. See p. 13 supra. 
Similarly, the First Circuit, applying plain-error 
review, has indicated that the fundamental question is 
whether the error affected the defendant’s decision to 
plead guilty. See Gandia-Maysonet, 227 F.3d at 6. 

The general test for assessing whether an error 
affected a defendant’s substantial rights is whether the 
error was “prejudicial,” i.e., whether it had an effect on 
“the outcome of the district court proceedings.” Olano, 
507 U.S. at 734. That test should apply to Rule 11 
errors as well. See Lyons, 53 F.3d at 1323. In a case 
like this one, where the error was the omission of ad- 
vice about a specific right, the proper means of applying 
the Olano test is to ask whether the Rule 11 error 
affected the defendant’s decision to plead guilty. If the 
defendant would have pleaded guilty even in the 

17 

absence of the error, then that error had no effect on 
the defendant’s substantial rights.9 

Similar considerations inform the final aspect of the 
plain-error review in this context: whether the court of 
appeals should exercise its discretion to correct the 
error. Cf. Johnson v. United States, 520 U.S. 461, 469 
(1997). As this Court observed in Olano, the plain- 
error standard requires the defendant to show that the 
error affected the “fairness, integrity, or public reputa- 

9 The inquiry whether the defendant would have pleaded guilty 
in the absence of the error is broader than the question whether 
the defendant was otherwise aware of the information that the 
district court failed to provide in the Rule 11 colloquy. If the 
defendant was otherwise aware of that information (because, for 
example, he received the same information at an earlier court 
hearing) but nonetheless pleaded guilty, then it would follow that 
the district court’s failure to provide him with the information 
again at the guilty plea colloquy did not affect the defendant’s 
decision to plead guilty. But there may well be circumstances in 
which a court could conclude that the defendant was sufficiently 
determined to plead guilty that he would have done so even in the 
absence of the specific information omitted from the Rule 11 
colloquy. In addition, there are cases in which a court could con- 
clude that a Rule 11 error had no effect on the outcome of the 
proceedings (and thus had no effect on the defendant’s substantial 
rights) even without a retrospective assessment of whether the 
defendant would have pleaded guilty without the error. See, e.g., 
United States v. Raineri, 42 F.3d 36, 42-43 (1st Cir. 1994) (trial 
court’s erroneous notice about the maximum sentence was harm- 
less when the court imposed a sentence within the maximum term 
it had identified in the Rule 11 colloquy, and there was no reason to 
conclude that defendant had any expectation of a lesser penalty), 
cert. denied, 515 U.S. 1126 (1995); United States v. McCarty, 99 
F.3d 383 (11th Cir. 1996) (district court’s failure to mention 
possibility of restitution order during Rule 11 colloquy was harm- 
less error, since defendant had notice that he might be required to 
pay a fine of even greater amount than the restitution that was 
ordered). 

18 

tion of judicial proceedings.” 507 U.S. at 732. Under 
that standard, a defendant does not show plain error 
unless he shows that he would not have pleaded guilty 
in the absence of the error, that his plea lacked a factual 
basis, or that his guilty plea was constitutionally defec- 
tive. “In the taking of a guilty plea under Rule 11, the 
critical concerns are that the plea be voluntary and that 
there be an admission, colloquy, proffer, or some other 
basis for thinking that the defendant is at least argu- 
ably guilty.” Gandia-Maysonet, 227 F.3d at 6. The 
specific advice of rights required by Rule 11(c) is not 
itself constitutionally required for acceptance of guilty 
pleas, but rather is intended to ensure that the defen- 
dant’s plea is voluntary, intelligent, and supported by a 
factual basis. See McCarthy, 394 U.S. at 465. Accord- 
ingly, if a defendant acted knowingly and voluntarily in 
pleading guilty, and if the defendant was determined to 
plead guilty, such that the specific advice that the 
district failed to provide would have been insignificant 
to the defendant’s plea decision or of no consequence in 
light of the sentence later imposed, then there is no 
basis for concluding that the omission affected the fair- 
ness, integrity, or reputation of the proceeding. 

2. The court of appeals also held that, in considering 
whether a Rule 11 error “affect[ed] substantial rights,” 
a reviewing court is confined to the four corners of the 
transcript of the plea colloquy proceeding, at least on 
direct appeal. There is a disagreement among the cir- 
cuits concerning the scope of the record that may be 
considered on appeal in these circumstances, and that 
issue likewise merits this Court’s review. 

The Ninth Circuit, in which this case arose, confines 
itself strictly to the transcript of the plea hearing to 
determine whether the defendant was otherwise aware 
of the information omitted from the district court’s Rule 

19 

11 colloquy (here, the fact that respondent had the 
constitutional right to the assistance of counsel at trial). 
App., infra, 6a. In contrast, every other circuit that has 
considered this issue has held that the transcript of the 
plea colloquy is but one part of the record that may be 
considered in assessing whether a Rule 11 error af- 
fected the defendant’s substantial rights. For example, 
the Seventh and Eleventh Circuits have held that a 
written plea agreement signed by the defendant may 
be considered. United States v. Jones, 143 F.3d 1417, 
1420 (11th Cir. 1998) (failure to advise defendant of 
mandatory minimum sentence harmless in light of 
provision in written plea agreement specifying this 
information); United States v. Lovett, 844 F.2d 487, 492 
(7th Cir. 1988) (failure to advise defendant of right to 
the assistance of counsel harmless in light of written 
plea agreement). The Second Circuit similarly has held 
that a court may consider written submissions pre- 
sented to the district court in support of a motion for a 
change of plea. United States v. Maher, 108 F.3d 1513, 
1520-1524 (1997). The District of Columbia Circuit has 
held that a reviewing court may consider the tran- 
scripts of a defendant’s arraignment and sentencing 
hearing. United States v. Lyons, 53 F.3d 1321, 1322- 
1323 (1995) (failure to advise defendant of maximum 
possible fine harmless in light of advisement at arraign- 
ment and defendant’s failure to express surprise at fine 
actually imposed at sentencing). The Fifth Circuit has 
held that a reviewing court is entitled to consider post- 
plea materials that are “temporally relevant,” including 
the transcript of the sentencing hearing, to assess 
whether a Rule 11 error is harmless. United States v. 
Johnson, 1 F.3d 296, 302 (1993). 

The majority rule in the courts of appeals, permitting 
review of the entire official record to determine 

20 

whether a Rule 11 error violated a defendant’s substan- 
tial rights, is more consistent with a proper understand- 
ing of both plain-error and harmless-error review, than 
is the Ninth Circuit’s minority position. As the Court 
observed in United States v. Young, 470 U.S. 1 (1985), 
“[e]specially when addressing plain error, a reviewing 
court cannot properly evaluate a case except by 
viewing such a claim against the entire record. * * * It 
is simply not possible for an appellate court to assess 
the seriousness of the claimed error by any other 
means.” Id. at 16 (emphasis added). The same is true 
of harmless-error review. See Fed. R. Crim. P. 52(a) 
advisory committee’s note (observing that harmless- 
error rule is a restatement of prior law, which required 
reviewing court to “give judgment after an examination 
of the entire record before the court, without regard to 
technical errors, defects, or exceptions which do not 
affect the substantial rights of the parties”) (emphasis 
added). 

The Ninth Circuit’s rule that it will review only the 
transcript of the plea hearing to determine whether a 
defendant’s substantial rights were affected by a Rule 
11 error conflicts not only with the decisions of the 
other circuits that have considered that issue, but also 
with the plain intent of Rule 11(h). The Advisory Com- 
mittee Notes to Rule 11(h) explain that the question of 
harmless error should be resolved “solely on the basis 
of the Rule 11 transcript and the other portions (e.g., 
sentencing hearing) of the limited record made in such 
cases.” Fed. R. Crim. P. 11(h) advisory committee’s 
note (1983 Amendment) (emphasis added) (internal 
quotation marks omitted). Thus, the Advisory Com- 
mittee clearly contemplated the scope and sources of 
record material that a reviewing court should consider, 
and rejected the narrow position embraced by the court 

21 

of appeals in this case. The court of appeals here gave 
no weight at all to that persuasive commentary. 

10 

This case presents an appropriate vehicle for this 
Court to decide the scope of the record that a court of 
appeals may review in determining whether a Rule 11 
error affected a defendant’s substantial rights. The 
facts of this case well demonstrate the deficiencies of 
the Ninth Circuit’s anomalous rule. Respondent, 
assisted by counsel, was clearly advised at both his 
initial appearance and his arraignment that his right to 
counsel extended to all stages of the case. He also 
signed an acknowledgment of rights form in which he 
was again informed of that right, and his counsel 
attested to his reasoned belief that respondent was 
familiar with, and understood, the rights explained in 
that acknowledgment. The court of appeals neverthe- 
less refused even to consider that record evidence in as- 
sessing whether respondent’s “substantial rights” were 
affected. There is no reason for the court of appeals to 
refuse to consider such probative evidence on the ques- 
tion of prejudice. 

11 

10 While Advisory Committee notes accompanying promulgation 
of a Federal Rule are “not determinative” of the meaning of that 
Rule, this Court has long held that those notes are “of weight” in 
the Court’s construction of a Federal Rule. Torres v. Oakland 
Scavenger Co., 487 U.S. 312, 316 (1988) (quoting Mississippi Publ’g 
Corp. v. Murphree, 326 U.S. 438, 444 (1946)); see also United States 

v. Hyde, 520 U.S. 670, 676-677 (1997) (relying on advisory com- 
mittee's note (1983 Amendment) accompanying Fed. R. Crim. P. 
32(e)); United States v. Sells Eng’g, Inc., 463 U.S. 418, 428-429 
(1983) (relying on advisory committee's note accompanying Fed. R. 
Crim. P. 6(e)). 

11 As the government noted in its rehearing petition, respon- 
dent’s initial appearance and arraignment proceedings were not 
transcribed until after the court issued its initial opinion in this 
case. As a result, the government moved to supplement the record 

22 

3. The court of appeals’ decision raises matters of 
significant and recurring importance to the continued 
efficient administration of the criminal justice system— 
a system that, this Court has recognized, relies heavily 
on guilty pleas. See Santobello v. New York, 404 U.S. 
257, 260 (1971) (describing plea bargaining as “an 
essential component of the administration of justice”); 
cf. Blackledge v. Allison, 431 U.S. 63, 71 (1977) (“[T]he 
fact is that the guilty plea and the often concomitant 
plea bargain are important components of this country’s 
criminal justice system.”). Indeed, the vast majority of 
criminal cases in the federal system are resolved by 
guilty plea. 

12 

The enactment of Rule 11 was an important step 
towards standardizing the plea process and ensuring 
that guilty pleas satisfy constitutional standards. 
Nonetheless, it remains regrettably the case that dis- 

with those materials when it filed its rehearing petition. As 
respondent acknowledged below, “all these transcripts were in the 
district court record.” See Resp. Opp. to Pet. for Reh’g 3 n.1. The 
court of appeals did not formally rule on the government’s motion 
to supplement the record. It appears that the court of appeals 
considered that motion to be moot or irrelevant in light of its 
decision, on rehearing, that it could not consider any information 
other than the transcript of the guilty plea hearing to determine 
whether respondent had been prejudiced by the Rule 11 error. 
App., infra, 6a-7a (“Thus, we cannot consider the government’s 
claim that [respondent] learned of his right to counsel during 
earlier court proceedings.”). 

12 Statistics compiled by the Department of Justice indicate 
that, in Fiscal Year 1999, 62,418 defendants in federal court were 
convicted upon a guilty plea, or 94.5% of the total number of 66,055 
convicted; in Fiscal Year 1998, 56,896 defendants were convicted 
upon a guilty plea, or 93.3% of the total number of 60,958 convicted; 
and in Fiscal Year 1997, 52,514 defendants were convicted upon a 
guilty plea, or 92.8% of the total number of 56,570 convicted. 

23 

trict courts do not always comply with the require- 
ments of Rule 11 with the utmost strictness. Some- 
times courts fail to provide all of the information re- 
quired by Rule 11 even when, as in this case, the 
prosecutor brings that omission to the attention of the 
court. It is necessary, therefore, for the courts to 
develop a fair and efficient system for addressing claims 
of Rule 11 error, just as for addressing other claims of 
error that arise in the trial court. A properly limited 
standard of appellate review for claims of error not 
raised at trial also prevents the government from 
suffering unfair surprise when a mistake could have 
been rectified in the trial court had it been brought to 
that court’s attention. 

The application of a plain-error standard here, as in 
other contexts, would promote important interests in 
judicial economy and fairness by appropriately raising 
the appellate review bar in cases where counseled 
litigants fail to object to a claimed Rule 11 error. As 
the facts of this case illustrate, a contemporaneous 
objection by respondent’s counsel might well have 
cured the resulting defect. Indeed, respondent’s coun- 
sel had specific notice at the second plea hearing of the 
possibility of a Rule 11 error, in light of the prosecutor’s 
statement in open court and the court’s admission that 
it had not given an advisement about counsel because it 
did not believe one was necessary. Counsel’s failure to 
lodge a timely objection on that point thus warrants the 
application of the more rigorous plain-error standard of 
review. And any review of the impact of the Rule 11 
error should be considered on a full record, so that a 
just determination can be made whether respondent’s 
guilty plea should stand despite the trial court’s error. 
The Ninth Circuit’s position that appellate review must 

24 

be conducted on a truncated record warrants this 
Court’s review. 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

JAMES K. ROBINSON 

Assistant Attorney General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 

MICHAEL A. ROTKER 

Attorney 

DECEMBER 2000 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 98-50385 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE 

v. 

ALPHONSO VONN, DEFENDANT-APPELLANT 

Appeal from the United States District 
Court for the Central District of California; 
James M. Ideman, District Judge, Presiding 
D.C. No. CR-97-00233-JMI 

Argued and Submitted: Sept. 16, 1999 
Filed: Sept. 14, 2000 

(1a) 

2a 

ORDER 

The opinion filed April 20, 2000, and reported at 211 
F.3d 1109, is withdrawn and superseded by the at- 
tached opinion. The petition for rehearing is otherwise 
denied. 

OPINION 

Before: BROWNING, KOZINSKI and WARDLAW, 

Circuit Judges. 

KOZINSKI, Circuit Judge: 

We consider whether we must set aside a guilty plea 
because the district court failed to advise defendant of 
his right to be represented by counsel at trial. 

I 

On February 27, 1997, three men entered the 
Farmers and Merchants Bank in Long Beach, Cali- 
fornia, and attempted a daring, if ill-conceived, daytime 
robbery. After announcing “[t]his is a holdup,” two of 
the robbers drew guns and instructed everyone to get 
on the floor. The third man, Vonn, leapt over the 
counter with a bag for the tellers to fill with money. 
The three men then fled with a grand total of $209, 
proving yet again that crime doesn’t pay. Adding 
injury to insult, the three were arrested a short time 
later and police recovered the entire booty from Vonn’s 
sock. 

Vonn was initially charged with armed bank robbery 
in violation of 18 U.S.C. § 2113(a) and (d) and chose to 
plead guilty. As required by Rule 11(c) of the Federal 

3a 

Rules of Criminal Procedure, the court informed Vonn 
of the rights he was relinquishing: the right against 
self-incrimination, the right to trial by jury, the right to 
confront witnesses and the right to present evidence in 
his own behalf. Absent from the litany of Rule 11(c) 
rights ticked off by the district court was the right to 
counsel at trial. Cf. Fed. R. Crim P. 11(c)(3). 

The government then filed a superseding indictment 
charging Vonn with conspiracy to commit bank robbery 
in violation of 18 U.S.C. § 371 and carrying a firearm 
during a crime of violence in violation of 18 U.S.C. 
§ 924(c). Vonn pleaded guilty to these additional 
charges and the court again instructed him as to the 
rights he was giving up. Again, the district judge failed 
to inform Vonn of his right to an attorney at trial as 
required by Rule 11(c)(3). This time the government 
attempted to point out the court’s error: 

Ms. Lu (for 
Your Honor? 

the government): 

The Court: What? 

Ms. Lu: 
If we could—I don’t know 

remember hearing the Court 
inform the defendant of his 
right to assistance of counsel. 

The Court: 

I didn’t because [he] is repre- 
sented by counsel. 

Reporter’s Transcript of Proceedings, Change of Plea 
at 10-11. 

Vonn subsequently moved to withdraw his guilty 
plea on the gun charge, arguing that he was not guilty 

4a 

and his plea was the result of a mistake. The court 
denied Vonn’s motion. In the Presentence Report, 
Vonn’s probation officer recommended a prison term at 
the low end of the spectrum given “the minimal loss and 
[Vonn’s] lack of criminal history.” Vonn was sentenced 
to a total of 97 months. On appeal, he seeks to have all 
of his convictions set aside due to the district judge’s 
failure to advise him of his right to counsel at trial.1 

II 

According to Rule 11, prior to accepting a guilty plea, 
“the court must address the defendant personally in 
open court and inform the defendant” of his rights. 
Fed. R. Crim. P. 11(c) (emphasis added). The Rule then 
goes on to list the specific rights the court must explain 
to the defendant. If the district court fails to properly 
advise a defendant of his rights under Rule 11(c), we 
typically allow him to withdraw his guilty plea. See 
United States v. Odedo, 154 F.3d 937, 939 (9th Cir. 1998) 
(holding that where “the district court violated the 
requirements of Rule 11” it was “necessary to remand 
so that [defendant] has the opportunity to enter a new 
plea”). 

The government has all but conceded that the re- 
quirements of Rule 11 were not satisfied here. See 
Appellee’s Brief at 1 (posing the issue presented as 
“[w]hether . . . the district court’s failure explicitly to 
advise (sic) defendant of his right to the continued 

1 Vonn also claims the district court erred in failing to warn him 
that statements he made in the change of plea hearing could be 
used against him in a future perjury prosecution. Because we find 
the failure to advise him of the right to counsel to be dispositive, 
we need not address this claim. 

5a 

assistance of counsel at trial affected defendant’s 
substantial rights”). Nevertheless, the government 
offers two arguments as to why Vonn ought not be 
allowed to withdraw his guilty plea. The first is that he 
is precluded from raising his Rule 11 claim with respect 
to the firearms charge because he failed to raise it 
below in his motion to withdraw the plea. Second, the 
government argues that the district court’s failure to 
adhere strictly to the requirements of Rule 11(c)(3) was 
harmless error. 

A. Waiver 

The government correctly points out that we do not 
normally consider issues raised for the first time on 
appeal. See United States v. Rubalcaba, 811 F.2d 491, 
493 (9th Cir. 1987) (refusing to “consider the merits” 
because defendant “failed to raise this claim below in 
his motion to withdraw his plea . . . [and] fail[ed] to 
satisfy any . . . exceptions”). However, we have held 
that this does not apply to Rule 11 errors. Instead, 
Rule 11 has its own review mechanism, which super- 
sedes the normal waiver rule. See Odedo, 154 F.3d at 
940, (“[T]he Rule 11(h) ‘harmless error’ standard 
applies to all Rule 11 errors, regardless of whether they 
were ever raised before the district court.”).2 Thus, the 

2 We note, moreover, that accepting the government’s waiver 
argument would create a curious anomaly: We would be precluded 
from considering the failure to caution defendant of his right to 
counsel on the gun charge, as to which he made a motion to with- 
draw the plea (but failed to raise the rule 11 argument), but we 
would not be precluded from considering the issue with respect to 
the remaining counts, as to which defendant made no motion to 
withdraw the plea. 

6a 

case turns on our resolution of the government’s second 
argument, that the district court’s error was harmless. 

B. Harmless Error 

Under Rule 11(h), we must disregard variances from 
the colloquy that do not “affect substantial rights.” 
Fed. R. Crim. P. 11(h). We have interpreted this to 
mean that we must inquire whether the defendant was 
aware of his rights despite the judge’s failure to advise 
him. See United States v. Graibe, 946 F.2d 1428, 1435 
(9th Cir. 1991) (requiring that government make “an 
affirmative showing on the record that the defendant 
was actually aware of the advisement” for the error to 
be harmless). 

In determining what the defendant knew, “we are 
limited to what the record of the plea proceeding 
contains.” Id. at 1434. The requirements of Rule 11 are 
so easy to follow that we will not go beyond the plea 
proceeding in considering whether the defendant was 
aware of his rights. See Odedo, 154 F.3d at 940 (“Our 
review is limited to the record of the plea proceeding.”); 
United States v. Gastelum, 16 F.3d 996, 999 (9th Cir. 
1994) (“This requirement ensures that a defendant is 
fully aware of his rights when his plea is entered—that 
he is aware of them at the time they are being waived.”); 
United States v. Kennell, 15 F.3d 134, 138 (9th Cir. 
1994) (“In making the critical inquiry into what Kennell 
actually knew at the time he entered his plea, we are 
limited to the contents of the record of the plea pro- 
ceeding.”).3 Thus, we cannot consider the government’s 

3 United States v. Dawson, 193 F.3d 1107 (9th Cir. 1999), 
distinguished Gastelum, 16 F.3d 996, on the grounds that the court 
might look beyond the plea proceeding on habeas review, even 
though it would not on direct appeal. See Dawson, 193 F.3d at 

7a 

claim that Vonn learned of his right to counsel during 
earlier court proceedings. 

The government suggests that the Assistant United 
States Attorney’s reminder to the district court during 
the plea proceeding alerted the defendant to his right to 
assistance of counsel at trial. See p. 1154 [3a], supra. 
We sympathize with the government’s position and 
recognize its good faith effort to correct the district 
court’s error. However, the transcript of the 
government’s attempted correction does not yield the 
unequivocal evidence we would need before we could 
deem Vonn aware of his continuing right to counsel at 
trial. 

The prosecutor’s statement was elliptical at best: “If 
we could—I don’t know remember hearing the court 
inform the defendant of his right to assistance of coun- 
sel.” Reporter’s Transcript of Proceedings, Change of 
Plea at 10-11. For those familiar with the legal system, 
the import of the lawyer’s statement is apparent: She 
was reminding the district court of defendant’s right to 
representation of counsel at trial. However, for an 
inexperienced criminal defendant, the statement could 
be baffling, as it does not mention the availability of 
counsel at trial. And the district court’s response to the 
government’s reminder, “I didn’t because [he] is 
represented by counsel,” id. at 11, might confuse even 
an experienced criminal defendant. We cannot assume 
that Vonn understood the point of the government’s 
objection. 

1110. While we are not convinced the distinction makes sense, our 
case falls on the Gastelum side of the line. 

8a 

The government also relies on cases from other 
circuits which appear to hold that a defendant who is 
represented by counsel at his plea hearing, is presumed 
to be aware of his right to counsel at trial. See, e.g., 
United States v. Gomez-Cuevas, 917 F.2d 1521, 1526 
(10th Cir. 1990) (“[T]here was no prejudice in the 
court’s failure to advise Gomez he had a right to counsel 
because Gomez already was represented by counsel.”); 
United States v. Lovett, 844 F.2d 487, 491 (7th Cir. 1988) 
(“Lovett was represented by an attorney. Therefore, 
the district court was not required to inform Lovett 
that even if he could not afford one, an attorney could 
be appointed to assist him at trial.”); United States v. 
Caston, 615 F.2d 1111, 1113-15 (5th Cir. 1980) (harmless 
error where court failed to explicitly advise defendant 
of right to assistance of counsel at trial); United States 

v. Saft, 558 F.2d 1073, 1080 (2d Cir. 1977) (“[I]t would 
defy reality to suppose that Saft had any doubts” about 
his appointed counsel’s continuing to represent him at 
trial, because unlike “a defendant with retained counsel 
who might worry that his money might run out . . . . 

there was no suggestion that [Saft’s] counsel would 
abandon him if he went to trial.”). 

While language in these cases supports the govern- 
ment’s position, most rely upon evidence outside of the 
plea proceeding.4 This our precedent firmly precludes. 

4 In Lovett, the court relied upon the defendant’s prior dealings 
with the criminal justice system as suggesting his awareness of his 
right to counsel. See Lovett, 844 F.2d at 492 (“[T]here is no 
suggestion in the record that Lovett did not know about his right 
to counsel at trial . . . through his own extensive experience as a 
criminal defendant.”). Likewise, Caston had been in the criminal 
justice system before and his experience supported the inference 
that he was familiar with his right to counsel at trial. See Caston, 

9a 

See pp. 1155-56 [6a], supra. Gomez-Cuevas is the only 
case cited by the government where the fact that a 
defendant was represented at the plea hearing was 
deemed sufficient to support the inference that he knew 
of his right to counsel at trial. See 917 F.2d at 1526. 
However, it is also out of step with our case law, which 
requires “an affirmative showing on the record” that 
defendant was aware of his rights. See Graibe, 946 F.2d 
at 1435. Moreover, it is inconsistent with the structure 
of Rule 11. Subsection (c)(3) of the rule specifies the 
rights of which defendant must be advised even if he is 
represented by counsel, and this includes the right to 
counsel at trial. The drafters of the rule, thus, did not 
consider the admonition redundant simply because 
defendant is represented by counsel at the plea 
hearing.5 The fact that a criminal defendant has been 
assigned a lawyer for a plea hearing does not, standing 
alone, absolve the district judge of his responsibility to 
advise the defendant of his continuing right to an 
attorney at trial under Rule 11(c)(3). 

615 F.2d at 1115 (“[Caston] was an experienced defendant. . . .”). 

Finally, in Saft, the court relied on evidence that the defendant 
was actually aware that his lawyer would continue to represent 
him at trial. See Saft, 558 F.2d at 1080 (“Saft’s affidavit in support 
of his motion to withdraw his guilty plea stated that prior to the 
opening of serious plea discussions in September 1976, ‘my 
attorney and I had looked forward to trial as the ultimate forum 
for proving that I am not guilty of the crimes charged.’ ” 

5 By contrast, subsection (c)(2) of the rule lists certain 
advisements that the court may omit if the defendant is already 
represented. See Fed. R. Crim. P. 11(c)(2). 

10a 

CONCLUSION 

Because the district court erred in advising Vonn of 
his rights under Rule 11(c)(3), and that error was not 
harmless, we vacate Vonn’s sentence and guilty pleas 
and remand for further proceedings consistent with this 
opinion. 

VACATED and REMANDED. 

11a 

APPENDIX B 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 98-50385 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE 

v. 

ALPHONSO VONN, DEFENDANT-APPELLANT 

Appeal from the United States District 
Court for the Central District of California 
James M. Ideman, District Judge, Presiding 
D.C. No. CR-97-00233-JMI 

Argued and Submitted: Sept. 16, 1999 
Filed: April 20, 2000 

Before: BROWNING, KOZINSKI and WARDLAW, 

Circuit Judges. 

KOZINSKI, Circuit Judge. 

We consider whether we must set aside a guilty plea 
because the district court failed to advise defendant of 
his right to be represented by counsel at trial. 

12a 

I 

On February 27, 1997, three men entered the 
Farmers and Merchants Bank in Long Beach, Cali- 
fornia, and attempted a daring, if ill-conceived, daytime 
robbery. After announcing “[t]his is a holdup,” two of 
the robbers drew guns and instructed everyone to get 
on the floor. The third man, Vonn, leapt over the 
counter with a bag for the tellers to fill with money. 
The three men then fled with a grand total of $209, 
proving yet again that crime doesn’t pay. Adding 
injury to insult, the three were arrested a short time 
later and police recovered the entire booty from Vonn’s 
sock. 

Vonn was initially charged with armed bank robbery 
in violation of 18 U.S.C. § 2113(a) and (d) and chose to 
plead guilty. As required by Rule 11(c) of the Federal 
Rules of Criminal Procedure, the court informed Vonn 
of the rights he was relinquishing: the right against 
self-incrimination, the right to trial by jury, the right to 
confront witnesses and the right to present evidence in 
his own behalf. Absent from the litany of Rule 11(c) 
rights ticked off by the district court was the right to 
counsel at trial. Cf. Fed. R. Crim P. 11(c)(3). 

The government then filed a superseding indictment 
charging Vonn with conspiracy to commit bank robbery 
in violation of 18 U.S.C. § 371 and carrying a firearm 
during a crime of violence in violation of 18 U.S.C. 
§ 924(c). Vonn pleaded guilty to these additional 
charges and the court again instructed him as to the 
rights he was giving up. Again, the district judge failed 
to inform Vonn of his right to an attorney at trial as 

13a 

required by Rule 11(c)(3). This time the government 
attempted to point out the court’s error: 

Ms. Lu (for the 
Your Honor? 

government): 

The Court: What? 

Ms. Lu: 
If we could-I don’t know 

remember hearing the Court 
inform the defendant of his 
right to assistance of counsel. 

The Court: 

I didn’t because [he] is repre- 
sented by counsel. 

Reporter’s Transcript of Proceedings, Change of Plea 
at 10-11. 

Vonn subsequently moved to withdraw his guilty 
plea on the gun charge, arguing that he was not guilty 
and his plea was the result of a mistake. The court 
denied Vonn’s motion. In the Presentence Report, 
Vonn’s probation officer recommended a prison term at 
the low end of the spectrum given “the minimal loss and 
[Vonn’s] lack of criminal history.” Vonn was sentenced 
to a total of 97 months. On appeal, he seeks to have all 
of his convictions set aside due to the district judge’s 
failure to advise him of his right to counsel at trial.1 

1 Vonn also claims the district court erred in failing to warn him 
that statements he made in the change of plea hearing could be 
used against him in a future perjury prosecution. 

Because we find 

the failure to advise him of the right to counsel to be dispositive, 
we need not address this claim. 

14a 

II 

According to Rule 11, prior to accepting a guilty plea, 
“the court must address the defendant personally in 
open court and inform the defendant” of his rights. 
Fed. R. Crim. P. 11(c) (emphasis added). The Rule then 
goes on to list the specific rights the court must explain 
to the defendant. If the district court fails to properly 
advise a defendant of his rights under Rule 11(c), we 
typically allow him to withdraw his guilty plea. See 
United States v. Odedo, 154 F.3d 937, 939 (9th Cir. 1998) 
(holding that where “the district court violated the re- 
quirements of Rule 11” it was “necessary to remand so 
that [defendant] has the opportunity to enter a new 
plea”). 

The government has all but conceded that the re- 
quirements of Rule 11 were not satisfied here. See 
Appellee’s Brief at 1 (posing the issue presented as 
“[w]hether . . . the district court’s failure explicitly to 
advise (sic) defendant of his right to the continued 
assistance of counsel at trial affected defendant’s sub- 
stantial rights”). Nevertheless, the government offers 
two arguments as to why Vonn ought not be allowed to 
withdraw his guilty plea. The first is that he is 
precluded from raising his Rule 11 claim with respect to 
the firearms charge because he failed to raise it below 
in his motion to withdraw the plea. Second, the gov- 
ernment argues that the district court’s failure to 
adhere strictly to the requirements of Rule 11(c)(3) was 
harmless error. 

15a 

A. Waiver 

The government correctly points out that we do not 
normally consider issues raised for the first time on 
appeal. See United States v. Rubalcaba, 811 F.2d 491, 
493 (9th Cir. 1987) (refusing to “consider the merits” 
because defendant “failed to raise this claim below in 
his motion to withdraw his plea . . . [and] fail[ed] to 
satisfy any . . . exceptions”). However, we have held 
that this does not apply to Rule 11 errors. Instead, 
Rule 11 has its own review mechanism, which super- 
sedes the normal waiver rule. See Odedo, 154 F.3d at 
940, (“[T]he Rule 11(h) ‘harmless error’ standard ap- 
plies to all Rule 11 errors, regardless of whether they 
were ever raised before the district court.”).2 Thus, the 
case turns on our resolution of the government’s second 
argument, that the district court’s error was harmless. 

B. Harmless Error 

Under Rule 11(h), we must disregard variances from 
the colloquy that do not “affect substantial rights.” 
Fed. R. Crim. P. 11(h). We have interpreted this to 
mean that we must inquire whether the defendant was 
aware of his rights despite the judge’s failure to advise 
him. See, e.g., United States v. Dawson, 193 F.3d 1107, 
1110 (9th Cir. 1999) (approving district court’s exami- 
nation of defendant’s “recent experience in other 
criminal cases, which suggested that he knew the rights 

2 We note, moreover, that accepting the government's waiver 
argument would create a curious anomaly: We would be precluded 
from considering the failure to caution defendant of his right to 
counsel on the gun charge, as to which he made a motion to with- 
draw the plea (but failed to raise the rule 11 argument), but we 
would not be precluded from considering the issue with respect to 
the remaining counts, as to which defendant made no motion to 
withdraw the plea. 

16a 

he waived by pleading guilty”); United States v. Graibe, 
946 F.2d 1428, 1435 (9th Cir. 1991) (requiring that gov- 
ernment make “an affirmative showing on the record 
that the defendant was actually aware of the advise- 
ment” for the error to be harmless). 

What evidence is there that Vonn was aware of his 
right to counsel at trial, even though the district court 
neglected to inform him of it? The government points 
to the initial status conference where Vonn declared his 
intention to go to trial on the gun charge. According to 
the government, the discussion during the conference, 
set out in the margin,3 indicates that all parties knew 

3 

The Court: 
Oh. Is that your understand [sic] Counsel? 

Do you and your client understand that 
the Government wants to pursue the gun 
allegation apparently? 

Mr. Li: 

Yes, I do, Your Honor— 

The Court: 

The Government’s position is that Mr. 

Vonn personally used a firearm, right? 

Ms. Lu: Yes. 

The Court: 
And he doesn’t want to admit that. So he 

would be admitting the armed bank 
robbery and admitting that somebody in 
the group used a gun but not necessarily it 
was he, right? 

Mr. Li: 

Yes, Your Honor. Can I have a moment, 

Your Honor? 

The Court: Yes. 

(Pause in the proceedings) 

Mr. Li: We will proceed, Your Honor. 

17a 

that Vonn would continue to be represented by Mr. Li, 
his appointed lawyer, at trial. Furthermore, according 
to the government, the district court informed both 
lawyers of the trial date, which should have made clear 
to Vonn that Mr. Li was to appear on his behalf at that 
time.4 

Nothing in the transcript indicates that Vonn was 
aware of his continued right to counsel if he chose to go 
to trial. The district court did not mention that right, 

The Court: 
Is there really any point in taking this 

plea? If we're going to go through a 
whole, the jury is going to have to hear 
the whole case anyway then to figure out 
whether or not he used a gun. 

Mr. Li: 

I understand, Your Honor. But it's my 

client's desire to plead guilty to Count 
One. 

Reporter's Transcript of Proceedings, Status conference, 
Monday, May 12, 1997 at 3-4. 

4 

The Court: 
Let's see. Jury trial is set for June 10th. 

We can just leave it on the calendar for 
June 10th, then, for trial. 

Mr. Li: 

Yes, your Honor. 

Ms. Lu: 

Very well. 

The Court: 

That will be the order then. The trial will 

remain as set for June 10th, on Count 
Two, and the sentencing date will remain 
as set by the Court. We'll see you back 
here on June 10th. 

Reporter's Transcript of Proceedings, Status Conference, May 12, 
1997 at 12-13. 

18a 

nor did Vonn say anything, much less anything that 
clearly suggests he was aware of this right. The brief 
conference between Vonn and his lawyer, as the district 
court and government counsel watched, was off the 
record and we have no clue as to what was said be- 
tween them. This hardly amounts to “an affirmative 
showing on the record that the defendant was actually 
aware of the advisement.” Graibe, 946 F.2d at 1435. 

The scheduling colloquy presents a closer question. 
Given some familiarity with how court proceedings are 
conducted, one would infer that when the court 
announces a future court appearance in the case, 
counsel are expected to be present unless specifically 
excused. But Vonn had no prior criminal record, nor do 
we have any indication that he was familiar with 
courtroom proceedings. We therefore cannot assume 
that he was aware of this convention. The district 
judge certainly did not say anything like, “I expect both 
counsel to be here on that date,” nor would we expect 
him to do so, as counsel would know to be present 
without any such admonition. But the client is pre- 
sumed not to know all the things counsel knows, which 
is why we have a Rule 11 colloquy. Based on this re- 
cord, we cannot say with confidence that Vonn knew 
that he was entitled to be represented by counsel at 
trial despite the court’s failure to advise him of this fact. 

The government suggests that the Assistant United 
States Attorney’s reminder to the district court alerted 
the defendant to his right to assistance of counsel at 
trial. See p. 1111-1112 [12a], supra. We sympathize 
with the government’s position and recognize its good 
faith effort to correct the district court’s error. 
However, the transcript of the government’s attempted 

19a 

correction does not yield the unequivocal evidence we 
would need before we could deem Vonn aware of his 
continuing right to counsel at trial. 

The prosecutor’s statement was elliptical at best: “If 
we could—I don’t know remember hearing the court 
inform the defendant of his right to assistance of 
counsel.” Reporter’s Transcript of Proceedings, 
Change of Plea at 10-11. For those familiar with the 
legal system, the import of the lawyer’s statement is 
apparent: She was reminding the district court of 
defendant’s right to representation of counsel at trial. 
However, for an inexperienced criminal defendant, the 
statement could be baffling, as it does not mention the 
availability of counsel at trial. And the district court’s 
response to the government’s reminder, “I didn’t be- 
cause [he] is represented by counsel,” id. at 11, might 
confuse an even more experienced criminal defendant. 
We cannot assume defendant here understood the gov- 
ernment’s attempted correction. 

The government also relies on cases from other 
circuits which appear to hold that a defendant who is 
represented by counsel at his plea hearing, is presumed 
to be aware of his right to counsel at trial. See, e.g., 
United States v. Gomez-Cuevas, 917 F.2d 1521, 1526 
(10th Cir. 1990) (“[T]here was no prejudice in the 
court’s failure to advise Gomez he had a right to counsel 
because Gomez already was represented by counsel.”); 
United States v. Lovett, 844 F.2d 487, 491 (7th Cir. 1988) 
(“Lovett was represented by an attorney. Therefore, 
the district court was not required to inform Lovett 
that even if he could not afford one, an attorney could 
be appointed to assist him at trial.”); United States v. 
Caston, 615 F.2d 1111, 1113-15 (5th Cir. 1980) (harmless 

20a 

error where court failed to explicitly advise defendant 
of right to assistance of counsel at trial); United States 

v. Saft, 558 F.2d 1073, 1080 (2d Cir. 1977) (“[I]t would 
defy reality to suppose that Saft had any doubts” about 
his appointed counsel’s continuing to represent him at 
trial, because unlike “a defendant with retained counsel 
who might worry that his money might run out . . . . 

there was no suggestion that [Saft’s] counsel would 
abandon him if he went to trial.”). 

While these cases use language that supports the 
government’s position, most did not rely solely on the 
fact that defendant was represented at the plea hear- 
ing. In Lovett, there was other evidence that the 
defendant was aware of his right to counsel, including 
prior dealings with the criminal justice system. See 
Lovett, 844 F.2d at 492 (“[T]here is no suggestion in the 
record that Lovett did not know about his right to 
counsel at trial . . . through his own extensive 
experience as a criminal defendant.”). Caston had been 
in the criminal justice system before and his experience 
supported the inference that he was familiar with his 
right to counsel at trial. See Caston, 615 F.2d at 1115 
(“[Caston] was an experienced defendant . . . .”). 

Finally, in Saft, there was evidence that the defendant 
was actually aware that his lawyer would continue to 
represent him at trial. See Saft, 558 F.2d at 1080 
(“Saft’s affidavit in support of his motion to withdraw 
his guilty plea stated that prior to the opening of 
serious plea discussions in September 1976, ‘my 
attorney and I had looked forward to trial as the ulti- 
mate forum for proving that I am not guilty of the 
crimes charged.’”). 

21a 

In Vonn’s case, nothing other than the fact that he 
was represented by counsel at the plea hearing sup- 
ports the inference that he was aware of his right to 
counsel at trial. Vonn has no criminal record and he 
made no statement that clearly disclosed his under- 
standing that Mr. Li, his plea hearing lawyer, would 
continue to represent him if he chose to go to trial. 

Gomez-Cuevas is the only case cited by the gov- 
ernment where the fact that a defendant was repre- 
sented at the plea hearing was deemed sufficient to 
support the inference that he knew of his right to 
counsel at trial. However, we consider it out of step 
with our case law which requires “an affirmative 
showing on the record” that defendant was aware of his 
rights. United States v. Graibe, 946 F.2d 1428, 1435 (9th 
Cir. 1991). Moreover, it is inconsistent with the 
structure of Rule 11. Subsection (c)(3) of the rule 
specifies the rights of which defendant must be advised 
even if he is represented by counsel, and this includes 
the right to counsel at trial. The drafters of the rule, 
thus, did not consider the admonition redundant simply 
because defendant is represented by counsel at the plea 
hearing.5 The fact that a criminal defendant has been 
assigned a lawyer for a plea hearing does not, standing 
alone, absolve the district judge of his responsibility to 
advise the defendant of his continuing right to an 
attorney at trial under Rule 11(c)(3). 

5 By contrast, subsection (c)(2) of the rule lists certain advise- 
ments that the court may omit if the defendant is already repre- 
sented. See Fed. R. Crim. P. 11(c)(2). 

22a 

CONCLUSION 

Because the district court erred in advising Vonn of 
his rights under Rule 11(c)(3), and that error was not 
harmless, we vacate Vonn’s sentence and guilty pleas 
and remand for further proceedings consistent with this 
opinion. 

VACATED and REMANDED. 

23a 

APPENDIX C 

UNITED STATES DISTRICT COURT 
FOR THE CENTRAL DISTRICT OF CALIFORNIA 

UNITED STATES OF 
AMERICA vs. 

CR 97-233-JMI 

Defendant’s Name 

ALPHONSO VONN 

CR 97-233(a)-JMI 

Residence 

[REDACTED] 

Social Security No. 

[REDACTED] 

Address 
Los Angeles, CA 90044 

Mailing Address 

[REDACTED] 

_________________________________________________ 

JUDGMENT AND PROBATION/COMMITMENT 
ORDER 

_________________________________________________ 

In the presence of the attorney for the government, the 
defendant appeared in person, on: 

6 22 98 
Month/ Day/ Year 

COUNSEL:___ WITHOUT COUNSEL However, the 

Court advised defendant of right to counsel and 
asked whether defendant desired to have 
counsel appointed by the Court and the defen- 
dant thereupon waived assistance of counsel. 

X_ WITH COUNSEL 
Derek Li. DFPD 

(Name of Counsel) 

PLEA: X 

GUILTY, and the Court being satisfied 

that there is a factual basis for the plea. 

24a 

___ NOLO CONTENDERE 

___ NOT GUILTY 

FINDING: There being a finding/xxxxxxx of x 

GUILTY, defendant has been convicted as charged of 
the offense(s) of: Conspiracy in violation of 18 U.S.C. 
371, as alleged in count 1 & Using a firearm during a 
crime of violence, in violation of 924(c), as alleged in 
count 3 of the first superseding Indictment in CR 97- 
233(a); Armed bank robbery in violation of 18 U.S.C. 
2113(2)(d) as alleged in count 1 of the Indictment in CR 
97-233. 

JUDGMENT 
AND PROB./ 
COMMITMENT 
ORDER 

The Court asked whether defen- 
dant had anything to say why judg- 
ment should not be pronounced. 
Because no sufficient cause to the 
contrary was shown, or appeared 
to the Court, the Court adjudged 
th e defendant guilty as charged and convicted and 
ordered that: Pursuant to the Sentencing Reform Act 
of 1984, it is the judgment of the Court that the 
defendant is hereby committed to the custody of the 
Bureau of Prisons to be imprisoned for a ter m of: 37 
m on th s as to count 1 of CR 97-233 & count 1 of CR 
97-233(a), said terms to be served concurrently with 
each other and 60 months as to count 3 of CR 97-233(a), 
to be served consecutively to the other term imposed 
for a total of 97 months. Upon release from imprison- 
ment defendant shall be placed on supervised release 
for a term of 3 years, as to count 1 of CR 97-233 & 
counts 1 & 3 of CR 97-233(a), said terms to be served 
concurently with each other under the following terms 
& conditions: 1. Comply with the rules & regulations of 
the U.S. Probation Office & General Order 318; 2. 

25a 

Refrain from any unlawful use of a controlled sub- 
stance. Submit to one drug test within 15 days of 
release from imprisonment & at least two periodic drug 
tests thereafter, as directed by the Probation Officer; 

3. If the amount of mandatory assessment imposed by 
this judgment remains unpaid at the commencement of 
the term of community supervision, defendant shall pay 
such remainder as directed by the Probation Officer; 

4. Defendant shall submit his person & property to 
search & seizure by any law enforcement officer with or 
without a warrant at any time of the day or night for 
the rehabilitation & reformation of the defendant. 

Pursuant to Section 5E1.2(f) of the Guidelines all fines 
are waived, including the costs of imprisonment & 
supervision, as it is found that defendant does not have 
the ability to pay. 

Defendant is ordered to pay a special assessment of 
$300.00. 

Defendant is given his rights on appeal. 

Court recommends designation to a southern California 
facility to facilitate visitation by relatives. 

Count 2 of CR 97-233(a), is dismissed in the interest of 
justice. 

In addition to the special conditions of supervision 
imposed above, it is hereby ordered that the Standard 
Conditions of Probation and Supervised Release set out 
on the reverse side of this judgment be imposed. The 
Court may change the conditions of supervision, reduce 
or extend the period of supervision, and at any time 

26a 

during the supervision period of within the maximum 
period permitted by law, may issue a warrant and 
revoke supervision for a violation occurring during the 
supervision period. 

____ This is a direct commitment to the 

Bureau of Prisons, and the Court has NO 
OBJECTION should the Bureau of Prisons 
designate defendant to a Community Cor- 
rections Center. 

Signed By: x U.S. District Judge /s/ JAMES M. IDEMAN 

JAMES M. IDEMAN 

SHERRI R. CARTER, CLERK 

Dated/Filed Jun 29 1998 By /s/ illegible___ 

Deputy Clerk 

27a 

STANDARD CONDITIONS OF PROBATION 
AND SUPERVISED RELEASE 

While the defendant is on probation or supervised 
release pursuant to this Judgment: 

1. The defendant shall not commit another Federal, 
state or local crime; 

2. the defendant shall not leave the judicial district 
without the written permission of the court or 
probation officer; 

3. the defendant shall report to the probation officer 
as directed by the court or probation officer and 
shall submit a truthful and complete written 
report within the first five days of each month; 

4. the defendant shall answer truthfully all inquiries 
by the probation officer and follow the instructions 
of the probation officer; 

5. the defendant shall support his or her dependents 
and meet other family responsibilities; 

6. the defendant shall work regularly at a lawful oc- 
cupation unless excused by the probation officer 
for schooling, training, or other acceptable reasons; 

7. the defendant shall notify the probation officer 
within 72 hours of any change in residence or 
employment; 

28a 

8. the defendant shall refrain from excessive use of 
alcohol and shall not purchase, possess, use, distri- 
bute, or administer any narcotic or other con- 
trolled substance, or any paraphernalia related to 
such substances, except as prescribed by a 
physician; 

9. the defendant shall not frequent places where 
controlled substances are illegally sold, used, 
distributed or administered; 

10. the defendant shall not associate with any persons 
engaged in criminal activity, and shall not 
associate with any person convicted of a felony 
unless granted permission to do so by the pro- 
bation officer; 

11. the defendant shall permit a probation officer to 
visit him or her at any time at home or elsewhere 
and shall permit confiscation of any contraband 
observed in plain view by the probation officer; 

12. the defendant shall notify the probation officer 
within 72 hours of being arrested or questioned by 
a law enforcement officer; 

13. the defendant shall not enter into any agreement 
to act as an informer or a special agent of a law 
enforcement agency without the permission of the 
court; 

14. as directed by the probation officer, the defendant 
shall notify third parties of risks that may be 
occasioned by the defendant’s criminal record or 
personal history or characteristics, and shall per- 

29a 

mit the probation officer to make such notifications 
and to conform the defendant’s compliance with 
such notification requirement; 

15. the defendant shall not possess a firearm or other 
dangerous weapon; 

16. the defendant shall, upon release from any period 
of custody, report to the probation officer within 
72 hours. 

These conditions are in addition to any other conditions 
imposed by this Judgment.