                Corrected Reprint 8/8/08

                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

GUILLERMO GARCIA-AGUILAR,               
                        Petitioner,
                v.                            No. 07-70293
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN                         D.C. No.
                                            CR-06-00678-LAB
DISTRICT OF CALIFORNIA,
                      Respondent,
UNITED STATES OF AMERICA,
            Real Party in Interest.
                                        

In re: ERICK MANJARREZ-                 
CERVANTEZ,
                          Petitioner,


ERICK MANJARREZ-CERVANTEZ,                    No. 07-71177
                        Petitioner,
                v.                             D.C. No.
                                            CR-05-01913-BEN
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF CALIFORNIA,
                      Respondent,
UNITED STATES OF AMERICA,
            Real Party in Interest.
                                        


                             9907
9908           GARCIA-AGUILAR v. U.S. DIST. COURT



In re: FREDIS AVILIO MEJIA-LEMUS,         
FREDIS AVILIO MEJIA-LEMUS,
                        Petitioner,              No. 07-71408
                v.
UNITED STATES DISTRICT                            D.C. No.
                                               CR-06-00811-MJL
COURT FOR THE SOUTHERN                            OPINION
DISTRICT OF CALIFORNIA,
                      Respondent,
UNITED STATES OF AMERICA,
            Real Party in Interest.
                                          
         Appeal from the United States District Court
            for the Southern District of California
           Larry A. Burns, District Judge, Presiding
          Roger T. Benitez, District Judge, Presiding
          M. James Lorenz, District Judge, Presiding

                   Argued and Submitted
           October 17, 2007—Pasadena, California

                      Filed August 6, 2008

             Before: Alex Kozinski, Chief Judge,
          M. Margaret McKeown, Circuit Judge, and
              Robert E. Jones,* District Judge.

               Opinion by Chief Judge Kozinski



   *The Honorable Robert E. Jones, Senior United States District Judge
for the District of Oregon, sitting by designation.
             GARCIA-AGUILAR v. U.S. DIST. COURT         9911


                        COUNSEL

David J. Zugman and John C. Lemon, San Diego, California,
for petitioner Guillermo Garcia-Aguilar.

Zandra L. Lopez, San Diego, California, and Michelle Betan-
court, Federal Defenders of San Diego, Inc., San Diego, Cali-
fornia, for petitioner Erick Manjarrez-Cervantez.

Zandra L. Lopez, San Diego, California, and Shaffy Moeel,
Federal Defenders of San Diego, Inc., San Diego, California,
for petitioner Fredis Avilio Mejia-Lemus.

Roger W. Haines, Jr., and Christopher A. Ott, Assistant U.S.
Attorneys, San Diego, California, for the United States, the
real party in interest.
9912          GARCIA-AGUILAR v. U.S. DIST. COURT
                          OPINION

KOZINSKI, Chief Judge:

  We consider the district court’s refusal to accept defen-
dants’ unconditional guilty pleas.

                             Facts

   These consolidated cases show again why the ten most ter-
rifying words in the English language may be, “I’m from the
government and I’m here to help you.” Defendants pled guilty
to re-entering the country illegally after having been previ-
ously removed, in violation of 8 U.S.C. § 1326. Their guilty
pleas were taken by magistrate judges, who conducted the
plea colloquies required by Rule 11(b) of the Federal Rules of
Criminal Procedure, and who thereafter recommended that the
district court accept the pleas.

   When the cases came before the district court for accep-
tance of the pleas, the U.S. Attorney objected on the ground
that the magistrate judges had erred in conducting the Rule
11(b) colloquies. The district judges agreed and refused to
accept any of the defendants’ guilty pleas.

   Rule 11(b) is there for the defendant’s benefit, so it seems
quite noble at first for the U.S. Attorney to stick up for defen-
dants’ rights. But this generosity comes at a steep price: The
U.S. Attorney has already arraigned defendants on supersed-
ing indictments that specifically charge a violation of 8 U.S.C.
§ 1326(b)(2), which is punishable by twenty years in prison.
This is eighteen years more than the two-year maximum sen-
tence available under defendants’ original indictments, which
did not charge any conduct that could increase the maximum
penalty above two years.

  Defendants reject the government’s help and petition for
writs of mandamus directing the district court to accept their
unconditional guilty pleas.
              GARCIA-AGUILAR v. U.S. DIST. COURT           9913
                           Analysis

   [1] The problem here arises from the fact that the U.S.
Attorney failed to allege in defendants’ original indictments
that they were previously removed from the country after
being convicted of a felony. See 8 U.S.C. § 1326(b)(2). The
U.S. Attorney knew—or should have known—that to be able
to rely on this fact in sentencing defendants under section
1326(b)(2), the fact had to be alleged in defendants’ indict-
ments and either proven to a jury or admitted. The law was
clear on this point: “Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi v. New Jersey,
530 U.S. 466, 490 (2000); see United States v. Jordan, 291
F.3d 1091, 1095 (9th Cir. 2002) (“[A]ny fact other than a
prior conviction that increases the maximum penalty for a
federal crime must also be charged in an indictment.”). It
should have been obvious to the U.S. Attorney that the
sequence of a defendant’s previous conviction and removal is
a fact separate from the prior conviction itself, and must
therefore be charged in the indictment and either proven at
trial or admitted.

   [2] Even if the federal prosecutors in the Southern District
of California had all misunderstood Apprendi, they should
have realized their mistake no later than December 2005,
when this precise issue was brought to their attention by
defendant’s briefs in United States v. Covian-Sandoval, 462
F.3d 1090 (9th Cir. 2006), which explained convincingly how
Apprendi applies to this very statute. At that point, the U.S.
Attorney likely could have brought superseding indictments
alleging the necessary fact. Instead, the prosecutors extracted
unconditional guilty pleas to the original indictments.

   [3] After the magistrate judges had taken defendants’ guilty
pleas, we held in Covian-Sandoval that defendant’s original
indictment could not support a sentencing enhancement under
9914          GARCIA-AGUILAR v. U.S. DIST. COURT
section 1326(b)(2) because the prior removal on which the
enhancement was based was not admitted or proven to a jury.
Covian-Sandoval, 462 F.3d at 1097. Only then did the U.S.
Attorney belatedly bring superseding indictments that alleged
the necessary fact. But defendants had by then already pled
guilty to the original indictments, and the district court “must
accept an unconditional guilty plea, so long as the Rule 11(b)
requirements are met.” In re Vasquez-Ramirez, 443 F.3d 692,
695-96 (9th Cir. 2006). It is to extricate itself from this conun-
drum that the government argued to the district court that
defendants’ Rule 11(b) colloquies were defective.

   [4] What, then, was the supposed deficiency in the plea col-
loquies? According to the government (and the district court),
the magistrate judges failed to properly advise defendants of
“any maximum possible penalty,” as required by Rule
11(b)(1)(h). The magistrate judges did tell defendants that
they faced a possible sentence of twenty years, which is the
maximum under section 1326(b)(2). The district judges held
that the magistrate judges should have told defendants that the
maximum possible penalty was just two years because the
original indictments don’t support the section 1326(b)(2)
enhancement. See Covian-Sandoval, 462 F.3d at 1097.

   [5] But Rule 11(b)(1)(h) doesn’t require judges to predict
the precise maximum penalty at sentencing. See United States
v. Barrios-Gutierrez, 255 F.3d 1024, 1027-28 (9th Cir. 2001)
(en banc) (“Whether [a sentencing] enhancement applies as a
matter of fact, as a matter of law, or whether its application
is merely a possibility are distinctions without significance at
a Rule 11 hearing. . . . Rule 11 does not require that the dis-
trict court announce authoritatively the actual maximum sen-
tence at the plea-taking stage.”). Instead, the court need only
tell defendants the maximum sentence that they could possi-
bly face.

   [6] What constitutes a “possible” sentence under Rule 11
rests on legal possibility, not abstract hypothetical possibility.
              GARCIA-AGUILAR v. U.S. DIST. COURT           9915
It was indeed possible for defendants to receive 20-year sen-
tences. That’s what happened to Manuel Salazar-Lopez, who
was charged with the same crime as defendants here. United
States v. Salazar-Lopez, 506 F.3d 748 (9th Cir. 2007).
Salazar-Lopez’s indictment also didn’t allege that he had been
previously removed after a felony conviction. Id. at 750. But,
unlike defendants here, Salazar-Lopez chose to stand trial and
was convicted. Id. Although the government introduced evi-
dence of a prior removal following a felony conviction, the
jury never determined that Salazar-Lopez was removed after
a felony conviction—no doubt because this allegation was
missing from the indictment. Id. at 751. Despite this omission,
the district court imposed an enhanced sentence under section
1326(b)—which is exactly what the magistrate judges warned
defendants could happen to them. On Salazar-Lopez’s appeal,
we held that the district court erred by applying the section
1326(b) sentencing enhancement, but affirmed the sentence
anyway because the error was harmless in light of the “over-
whelming and uncontroverted” evidence of the prior removal.
Id. at 752, 755.

   Salazar-Lopez’s experience demonstrates that the magis-
trate judges were right—it was entirely possible that defen-
dants would be subjected to a sentence up to the twenty-year
maximum under section 1326(b)(2). Because the plea collo-
quies were not defective, the district court was required to
accept defendants’ guilty pleas. Vasquez-Ramirez, 443 F.3d at
695-96.

   The government tries to distinguish Vasquez-Ramirez on
the ground that here it supports the district court’s actions,
while the district judge in Vasquez-Ramirez undermined the
government’s charging decision. See Vasquez-Ramirez, 443
F.3d at 697-98. We explained in Vasquez-Ramirez that the
prosecutor, not the district court, has authority to determine
what charges to bring. Id. (a judge has “no constitutional role”
in deciding “which charges to pursue”).
9916          GARCIA-AGUILAR v. U.S. DIST. COURT
   [7] The government here had ample opportunity to decide
what charges to bring against defendants; it exercised its pro-
secutorial discretion when it first indicted defendants, then
again when it helped extract guilty pleas to those indictments.
Acceptance of the guilty pleas that the government helped
obtain in no way undermines the government’s charging deci-
sion; rather, it confirms it. The government now regrets that
it failed to charge defendants with violating section
1326(b)(2). But the government has no power to void a know-
ing, voluntary and unconditional guilty plea so that it can fix
its charging error.

   [8] It’s true that the government is free to back out of a plea
agreement before it is formally accepted by the district court.
United States v. Savage, 978 F.2d 1136, 1138 (9th Cir. 1992).
But there was no agreement here: Defendants pled guilty
unconditionally. So there was nothing for the government to
back out of, and the district court had no cause for rejecting
the pleas.

   [9] The government lost its power to file additional charges
the moment defendants pled guilty knowingly, voluntarily and
unconditionally before the magistrate judges. Defendants’
pleas may not have taken final legal effect at that moment, as
defendants remained free to withdraw their pleas. United
States v. Alvarez-Tautimez, 160 F.3d 573, 576 (9th Cir. 1998)
(until a guilty plea is formally accepted by a district judge, the
defendant remains free to withdraw it for any reason); see
Fed. R. Evid. 410(1) (withdrawn guilty pleas aren’t admissi-
ble at trial). But whatever legal significance may attach to a
guilty plea taken by a magistrate judge, the plea also carries
significant real-world consequences. A defendant’s guilty
plea is a confession, freely and publicly made, that he is a
criminal. This has immediate and enduring effects on the
defendant’s standing in the community, and for that reason
and many others is often an excruciating experience. If the
confession meets the requirements of Rule 11(b)—
requirements that exist for the defendant’s own protection—
              GARCIA-AGUILAR v. U.S. DIST. COURT            9917
then the government has no power to force the defendant to
go through the ordeal again to serve its own purposes.

                         *     *      *

   [10] Defendants seek a writ of mandamus compelling the
district court to accept their pleas. We consider five factors in
deciding whether to issue this writ, see Bauman v. United
States Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977), and
here all five clearly cut in favor of defendants. As discussed
above, defendants have shown clear error by the district court
that “manifests a persistent disregard” of both Rule 11(b) and
of our holding in Vasquez-Ramirez. Bauman, 557 F.2d at
654-55. And it appears to be an “oft-repeated error,” as three
district judges committed the exact same error. Id. at 655.
Defendants’ petitions also raise “new and important” issues
regarding district judges’ authority to reject guilty pleas heard
by magistrate judges. Id. And a direct appeal is inadequate to
remedy the error, id., because requiring defendants to go to
trial on the superseding indictments and obtain a final judg-
ment would require them to suffer “the prejudice of [an] addi-
tional, and unnecessary, financial and emotional burden.”
Vasquez-Ramirez, 443 F.3d at 701 (quoting In re Ellis, 356
F.3d 1198, 1210-11 (9th Cir. 2004) (en banc)). Mandamus is
therefore appropriate.

   Due to the U.S. Attorney’s oversight, defendants may well
avoid the enhanced sentences to which they may have been
subject under section 1326(b)(2). “So be it.” United States v.
Velasco-Heredia, 319 F.3d 1080, 1087 (9th Cir. 2003). The
district court shall accept defendants’ unconditional guilty
pleas to the original indictments.

  PETITIONS GRANTED.
