                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 17 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50440

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00552-R-1

  v.
                                                 MEMORANDUM*
ROGELIO RUIZ ALONSO, AKA
Alejandro Ruiz, AKA Saul Alonzo Ruiz,
AKA Pio Saul Saldivar, AKA Alonso Ruiz
Sam,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50441

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00850-R-1

  v.

ROGELIO RUIZ ALONSO, AKA
Alejandro Ruiz, AKA Saul Alonzo Ruiz,
AKA Pio Saul Saldivar, AKA Alonso Ruiz
Sam,

              Defendant - Appellant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                      Argued and Submitted January 8, 2014
                              Pasadena, California

Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.

      Defendant Rogelio Ruiz Alonso appeals his conviction and sentence for

illegal reentry and violation of supervised release, based on a Rule 11(c)(1)(C) plea

agreement. We vacate Alonso’s guilty plea and sentence and remand his case.

      The Waiver of Appeal of Conviction in the plea agreement does not bar an

appeal challenging the voluntariness of the plea. Alonso’s claim that the district

court violated Federal Rule of Criminal Procedure 11(c)(5) by rejecting the

agreement and failing to give him an opportunity to withdraw his plea implicates

the plea’s voluntariness and is not waived.1

      Because Alonso raises his Rule 11 challenge for the first time on appeal, our

review is for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002).



      1
         The government concedes that the district court committed procedural error
in imposing the sentence for the supervised-release violation. Specifically, the
district court failed to calculate the Guidelines range, mention the applicable
§ 3553(a) factors, or explain its sentence of 12 months’ imprisonment. The parties
agree that such errors warrant vacatur and remand, independent of the
voluntariness of the plea. See United States v. Hammons, 558 F.3d 1100 (9th Cir.
2009).

                                          2
Alonso must show not only that the district court erred, but also a reasonable

probability that, but for the error, he would not have entered the plea. United

States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).

      The district court erred in failing to advise Alonso that it was rejecting the

plea agreement, as Rule 11(c)(5) requires. It sentenced Alonso to twelve months

for violation of his supervised release, consecutive to the 64-month sentence for

the new illegal reentry. In doing so, the district court effectively rejected the plea

agreement, which stipulated to a 64-month sentence for the illegal reentry and no

additional prison time for the supervised-release violation.

      The government does not dispute that it agreed to recommend no additional

time for the supervised-release violation (and did so recommend during the plea

colloquy). It argues, however, that the recommendation did not bind the district

court because the 11(c)(1)(C) stipulation covered only the agreement with respect

to the illegal reentry. The plea agreement’s structure reveals the weakness of the

government’s proposed interpretation. The second paragraph of the document,

bearing the heading “Rule 11(c)(1)(C) Agreement,” states, “Defendant understands

that this agreement is entered into pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C).” (Emphasis added.) In the immediately subsequent section, the

defendant agrees to admit to the supervised-release violation. In exchange, the


                                           3
government agrees to recommend no additional prison time in connection with that

violation.

      The most natural reading of the document is that Rule 11(c)(1)(C) was

intended to cover everything in the agreement, which included Alonso’s agreement

to admit Allegation 1 of the supervised-release violation in exchange for the

government’s recommendation of no additional prison time. The Rule 11(c)(1)(C)

stipulation appears at the beginning of the plea agreement and does not distinguish

between the illegal-reentry case and the supervised-release case. Because the

district court rejected the 11(c)(1)(C) agreement, Rule 11(c)(5) required it to

inform the parties that it was doing so and to offer Alonso an opportunity to

withdraw his plea. We hold that the district court erred in failing to do so.

      We also hold that the district court’s error was plain. Alonso has shown a

reasonable probability that, had the district court advised him of its intention to

reject the terms of the agreement, he would not have entered this particular plea

bargain. See Dominguez Benitez, 542 U.S. at 76. Had he known that the district

court intended to impose prison time for the supervised-release violation, beyond

the stipulated 64 months for the illegal reentry, it is reasonably probable that

Alonso would have withdrawn his guilty plea and sought to negotiate a different




                                           4
agreement that took into account the additional time for the supervised-release

violation.

      We therefore vacate Alonso’s conviction and sentence as to both the illegal

reentry and the supervised-release violation, because the district court’s failure to

comply with Rule 11(c)(5) rendered his guilty plea involuntary.

      VACATED and REMANDED.




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