                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                        No. 12-10596
                 Plaintiff-Appellee,
                                                    D.C. No.
                     v.                          4:12-cr-01407-
                                                  JGZ-HCE-1
 VICTOR MANUEL VALENZUELA-
 ARISQUETA, AKA Victor
 Valenzuela-Arisqueta,                              OPINION
               Defendant-Appellant.


        Appeal from the United States District Court
                 for the District of Arizona
        Jennifer G. Zipps, District Judge, Presiding

                    Argued and Submitted
          June 12, 2013—San Francisco, California

                      Filed August 1, 2013

    Before: Mary M. Schroeder, Kenneth F. Ripple*, and
          Consuelo M. Callahan, Circuit Judges.

                  Opinion by Judge Callahan




 *
   The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
2       UNITED STATES V. VALENZUELA-ARISQUETA

                           SUMMARY**


                           Criminal Law

    The panel affirmed the district court’s rejection of a
defendant’s guilty plea to illegal reentry in violation of
8 U.S.C. § 1326.

    The panel determined that the underlying premise for the
defendant’s insistence that the district court accept his plea –
that the maximum sentence under the indictment was two
years’ incarceration – is wrong. The panel observed that this
court’s prior opinions have rejected the defendant’s assertions
that in order to subject him to a possible 20-year maximum
sentence under 8 U.S.C. § 1326(b)(2), the indictment must set
forth the enhancement and mention the defendant’s
underlying conviction.

    The panel held that the district court properly rejected the
defendant’s guilty plea under Fed. R. Crim. P. 11, where he
had not been informed that he faced a possible sentence of
20 years, and properly offered him the choice of again
pleading guilty or proceeding to trial. The panel explained
that if jeopardy attached when the magistrate judge accepted
the defendant’s guilty plea, it did not terminate with the
rejection of his plea, as he retained all rights, and his
constitutional right not to be subjected to double jeopardy has
not been violated.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
       UNITED STATES V. VALENZUELA-ARISQUETA                   3

    The panel concluded that the defendant’s double jeopardy
claim barely met the threshold of “colorable” to support
jurisdiction over this interlocutory appeal, where this court
had not clearly reconciled its opinions in Garcia-Aguilar v.
United States District Court, 535 F.3d 1021 (9th Cir. 2008),
United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir.
2006), and United States v. Mendoza-Zaragoza, 567 F.3d 431
(9th Cir. 2009); and where the procedures set forth in Ellis v.
District Court, 356 F.3d 1198 (9th Cir. 2004) (en banc), merit
reiteration. The panel clarified that this opinion drains the
color from any future attempt to seek an interlocutory appeal
from a similar rejection of a guilty plea.



                         COUNSEL

Francisco León, Tucson, Arizona, for Defendant-Appellant.

John S. Leonardo, United States Attorney, Robert L. Miskell,
and Matthew C. Cassell (argued), Assistant United States
Attorneys, Tucson, Arizona for Plaintiff-Appellee.


                          OPINION

CALLAHAN, Circuit Judge:

    Victor Manuel Valenzuela-Arisquesta (“Valenzuela”)
appeals from the district court’s rejection of his guilty plea to
illegal reentry into the country in violation of 8 U.S.C.
§ 1326. He asserts that the rejection of his plea violates his
constitutional right against double jeopardy. We determine
that the underlying premise for Valenzuela’s insistence that
4      UNITED STATES V. VALENZUELA-ARISQUETA

the district court accept his plea – that the maximum sentence
under the indictment was two years’ incarceration – is wrong.
Furthermore, because Valenzuela was not informed of the
possible 20-year sentence, the district court properly rejected
his guilty plea and allowed Valenzuela the option of again
pleading guilty to the indictment or standing trial. Because
the propriety of the district court’s ruling was arguably not
clear from our precedent, Valenzuela’s double jeopardy
argument was “colorable,” see United States v. Zone,
403 F.3d 1101, 1104 (9th Cir. 2005), and we have
jurisdiction over his appeal. However, our decision today
clarifies that future similar rejections of guilty pleas will not
be subject to interlocutory appeals.

                               I

    Valenzuela was arrested on May 28, 2012, near
Lukesville, Arizona, and charged by complaint with illegal
reentry after deportation in violation of 8 U.S.C. § 1326. The
grand jury subsequently returned an indictment against
Valenzuela charging him with violating § 1326. Valenzuela
entered into a written plea agreement and the court scheduled
a change of plea hearing. The agreement stated that it was
“conditioned upon the defendant having no felony,
aggravated felony, or crime of violence convictions,” and
provided that if such convictions were discovered, “the
government shall have the right to withdraw from this
agreement.”

    Valenzuela appeared before a magistrate judge and was
informed that he faced a maximum sentence of two years.
Valenzuela pled guilty to: (a) being an alien, (b) having been
previously removed from the United States, (c) voluntarily
reentering the United States, and (d) failing to obtain the
          UNITED STATES V. VALENZUELA-ARISQUETA                         5

consent of the Attorney General to reenter the United States.
The magistrate judge recommended that the guilty plea be
accepted. See 28 U.S.C. § 636(b)(1).

    Within three weeks of the plea hearing, the government
submitted a motion to withdraw from the plea agreement
because it had received documents verifying that, in January
2004, Valenzuela had pled guilty to the charge of conspiracy
to transport illegal aliens in violation of 8 U.S.C. § 1324.
Valenzuela opposed the government’s motion to withdraw,
and argued that even if the government were allowed to
withdraw from the agreement, the district court should still
accept his plea. The government responded that the court
should: (1) allow it to withdraw from the plea agreement; (2)
advise Valenzuela that if he persisted in his guilty plea, he
may face a sentencing enhancement; and (3) allow
Valenzuela to withdraw his guilty plea.

    The underlying issue was whether Valenzuela, in light of
his prior conviction, faced the possibility of a maximum
enhanced sentence of 20 years’ incarceration under
§ 1326(b)(2).1 Valenzuela argued that he had only been

 1
     8 U.S.C. § 1326 reads, in relevant part:

          (a) In general

          Subject to subsection (b) of this section, any alien who–

               (1) has been denied admission, excluded, deported,
               or removed or has departed the United States while
               an order of exclusion, deportation, or removal is
               outstanding, and thereafter

               (2) enters, attempts to enter, or is at any time found
               in, the United States, unless (A) prior to his
6      UNITED STATES V. VALENZUELA-ARISQUETA

charged under § 1326(a) and accordingly, faced a maximum
sentence of two years. The government responded that
§ 1326(b) provides for different maximum sentencing
penalties for violations of § 1326(a) depending on the
defendant’s criminal conviction history. It further asserted
that because the enhancements are based on prior convictions,
a court has the authority to enhance the sentence even if the



           reembarkation at a place outside the United States
           or his application for admission from foreign
           contiguous territory, the Attorney General has
           expressly consented to such alien’s reapplying for
           admission; or (B) with respect to an alien
           previously denied admission and removed, unless
           such alien shall establish that he was not required
           to obtain such advance consent under this chapter
           or any prior Act,

       shall be fined under Title 18, or imprisoned not more
       than 2 years, or both.

       (b) Criminal penalties for reentry of certain removed
       aliens

       Notwithstanding subsection (a) of this section, in the
       case of any alien described in such subsection –

           (1) whose removal was subsequent to a conviction
           for commission of three or more misdemeanors
           involving drugs, crimes against the person, or both,
           or a felony (other than an aggravated felony), such
           alien shall be fined under Title 18, imprisoned not
           more than 10 years, or both;

           (2) whose removal was subsequent to a conviction
           for commission of an aggravated felony, such alien
           shall be fined under such title, imprisoned not
           more than 20 years, or both.
         UNITED STATES V. VALENZUELA-ARISQUETA                            7

prior conviction and the possible enhancement are not set
forth in the indictment.

    At the hearing on the motion to withdraw, the district
court agreed with the government and issued an order: (a)
granting the government’s motion to withdraw from the plea
agreement; (b) denying Valenzuela’s motion for an order
accepting his guilty plea; (c) advising Valenzuela that he had
seven days in which to withdraw from his guilty plea; and (d)
continuing sentencing for a month. When Valenzuela did not
withdraw his guilty plea, the district issued an order accepting
the guilty plea and reaffirming the sentencing date.

    A status hearing was held on November 8, 2012. The
district court expressed concern that the guilty plea taken by
the magistrate judge did not satisfy the requirements of
Federal Rule of Criminal Procedure 11 (“Rule 11”) because
Valenzuela had not been correctly advised of the maximum
possible penalty for the offense for which he was charged.2
The district court rejected the guilty plea over Valenzuela’s
counsel’s objection. The court found that the plea colloquy
was defective because “Valenzuela was not apprised of the
maximum penalties which is required under Rule 11.”

    Valenzuela filed a timely notice of appeal from the
district court’s order.3

  2
    Rule 11(b)(1) states that during the colloquy the district court “must
inform the defendant of, and determine that the defendant understands, . . .
any maximum possible penalty, including imprisonment, fine, and term
of supervised release.”
 3
   The district court addressed the propriety of the interlocutory appeal,
noting that a pretrial order rejecting a claim of double jeopardy may be
immediately appealable under the collateral order doctrine, citing United
8        UNITED STATES V. VALENZUELA-ARISQUETA

                                    II

    Our review of 8 U.S.C. § 1326 and this court’s opinions
shows that the indictment against Valenzuela, as issued,
allows for an enhanced sentence of up to 20 years. The
offense – reentry into the United States without the consent
of the Attorney General by an alien who has been previously
removed – is set forth in § 1326(a). Although this subsection
provides for a sentence of “not more than two years,”
§ 1326(b) provides for enhanced criminal penalties based on
a defendant’s prior convictions. Specifically, § 1326(b)(1)
provides for a prison sentence of not more than 10 years
where the alien has been convicted of three or more
misdemeanors involving drugs or of certain types of felonies,
and § 1326(b)(2) – the subsection at issue here – provides for
a prison sentence of not more than 20 years when the alien’s
“removal was subsequent to a conviction for commission of
an aggravated felony.”

    The record in this case clearly shows that Valenzuela’s
removal was subsequent to his conviction of an aggravated
felony. The criminal complaint states that Valenzuela was
removed from the United States on February 12, 2012.
Valenzuela’s district court conviction for conspiracy to
transport illegal aliens is dated January 27, 2004. Thus, by its
terms, § 1326(b)(2) applies to Valenzuela. See United States
v. Covian-Sandoval, 462 F.3d 1090, 1097 (9th Cir. 2006)


States v. Lewis, 368 F.3d 1102, 1107 (9th Cir. 2004), as long as the double
jeopardy claim is colorable, citing Zone, 403 F.3d at 1104. The district
court thought the appeal to be colorable, and stayed proceedings after
noting that, in a criminal case “[w]here an interlocutory claim is
immediately appealable, [the filing of a notice of appeal] divests the
district court of jurisdiction to proceed to trial.” See Chuman v. Wright,
960 F.2d 104, 105 (9th Cir. 1992).
       UNITED STATES V. VALENZUELA-ARISQUETA                 9

(“[T]o trigger the increase in the statutory maximum sentence
under § 1326(b)(2), an alien must first be convicted of an
aggravated felony, then be removed, and then attempt to
reenter, in that order.”).

    Valenzuela contends that § 1326(b)(2) does not apply
because he was charged only under § 1326(a). He relies
heavily on portions of our opinion in Garcia-Aguilar v.
United States District Court, 535 F.3d 1021 (9th Cir. 2008).
However, a careful reading of Garcia-Aguilar and our other
opinions reveals that our cases do not require the government
to specifically mention a defendant’s prior conviction in the
indictment.

    When Garcia-Aguilar notes that Covian-Sandoval
“explained convincingly how Apprendi [v. New Jersey,
530 U.S. 466 (2000),] applies,” and comments that in Covian-
Sandoval “the prior removal on which the enhancement was
based was not admitted or proven to the jury,” 535 F.3d at
1024, it did not hold that the prior removal had to be included
in the indictment. Rather, Garcia-Aguilar confirms that in
order for a court to impose a § 1326(b) enhancement, the
felony conviction must precede the defendant’s removal from
the country.

   In Covian-Sandoval, we explained:

       The removal that Covian admitted at trial was
       in 1997. Because his felony conviction was
       not until 2002, that removal does not support
       a sentence enhancement, and there was no
       mention in the indictment or at trial of any
       other removal. At sentencing, however, the
       court found that Covian was removed again in
10      UNITED STATES V. VALENZUELA-ARISQUETA

        2004, eight days before his attempted reentry.
        Because this second removal fell between
        Covian’s felony conviction and his
        subsequent attempt to reenter the United
        States, the court issued an enhanced sentence
        under § 1326(b)(2).

        Covian does not challenge the substance of
        any of these facts. Instead, he argues that,
        under Apprendi, if a specific removal is
        admitted at trial, an enhanced sentence cannot
        be triggered under § 1326(b) by a different
        removal that he did not admit. We agree with
        Covian, but we again find that relief is not
        warranted under the high bar of the plain error
        standard of review.

462 F.3d at 1097.

    Although we held that “the sentencing court’s reliance on
the 2004 removal was plain error under Apprendi,” id., we
also held that Covian bore the burden of raising a reasonable
doubt as to his 2004 removal. Id. at 1098. We found that
“Covian has done nothing to meet his burden of raising a
reasonable doubt as to the fact of his 2004 removal,” and that
“[u]nder the plain error standard, his sentence must therefore
stand.” Id. at 1099.

     We further explained:

        Under the Supreme Court’s decision in
        Almendarez-Torres v. United States [, 523
        U.S. 224 (1998)], a judge may enhance a
        sentence under § 1326(b) for a prior
       UNITED STATES V. VALENZUELA-ARISQUETA                11

       conviction even if the fact of the conviction
       was not charged in the indictment, submitted
       to a jury, or proved beyond a reasonable
       doubt. See 523 U.S. 224 (1998); United States
       v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th
       Cir. 2000).

       Covian argues that the Supreme Court has
       effectively overruled Almendarez-Torres, and,
       relatedly, that recent Supreme Court decisions
       create constitutional doubt that should compel
       us to limit the holding of Almendarez-Torres
       to cases in which the defendant admits the
       prior conviction during a guilty plea. Covian
       also argues that Apprendi renders
       unconstitutional the provisions of § 1326 that
       allow a judge to increase the maximum
       sentence from two years to twenty. All of
       these arguments, however, are squarely
       foreclosed by our precedents.

Id. at 1096–97 (footnote and parallel citations omitted).

    Any question as to the meaning of Covian-Sandoval and
Garcia-Aguilar was put to rest in United States v. Mendoza-
Zaragoza, 567 F.3d 431 (9th Cir. 2009). There, we explained
that “an indictment will support a 20-year maximum sentence
under § 1326(b) if it alleges a removal date, thus enabling a
sentencing court to determine whether the conviction
predated the defendant’s removal to establish the necessary
sequence.” Id. at 436. We reiterated:

       In other words, a guilty plea to the indictment
       can establish the removal date, and the only
12     UNITED STATES V. VALENZUELA-ARISQUETA

       other fact needed to enhance the sentence is
       the date of the felony conviction, which is an
       express exception to the Apprendi rule. See
       United States v. Grisel, 488 F.3d 844, 847
       (9th Cir. 2007) (en banc) (holding the date of
       a prior conviction is part of the “fact” of a
       prior conviction for Apprendi purposes
       because the date can be found on the
       document demonstrating the prior conviction).

Id.

    In sum, our prior opinions have rejected Valenzuela’s
assertions that the indictment must set forth an enhancement
under § 1326(b) and mention Valenzuela’s underlying
conviction.

                             III

    The district court properly rejected Valenzuela’s guilty
plea under Rule 11 and offered him the choice of again
pleading guilty or proceeding to trial. Thus, accepting that
jeopardy attached when Valenzuela pled guilty before the
magistrate judge, because this jeopardy never “terminated,”
Valenzuela has not been placed in double jeopardy.

    In Ellis v. United States District Court, 356 F.3d 1198,
1200, 1206 (9th Cir. 2004) (en banc), we explained that
jeopardy attaches when a court accepts a guilty plea, but also
that a district court has the authority under Rule 11 to reject
a plea agreement. Our opinion set forth the procedures to be
          UNITED STATES V. VALENZUELA-ARISQUETA                         13

followed when a court rejects a plea agreement,4 and
explained:

          When his plea agreement was rejected, it
          became Ellis’s choice whether to: (i) stand by
          his plea and face a sentence at the highest end
          of the applicable guidelines range (151
          months) or an upward departure to as much as
          a life term; (ii) withdraw his plea and attempt
          to renegotiate a new plea agreement without a


 4
     The court stated that when a plea agreement is rejected:

          [T]he court must do the following on the record and in
          open court (or, for good cause, in camera):

               (A) inform the parties that the court rejects the plea
               agreement;

               (B) advise the defendant personally that the court
               is not required to follow the plea agreement and
               give the defendant an opportunity to withdraw the
               plea; and

               (C) advise the defendant personally that if the plea
               is not withdrawn, the court may dispose of the case
               less favorably toward the defendant than the plea
               agreement contemplated.

          Fed. R. Crim. P. 11(c)(5). Rule 11 thus contemplates
          that the district court’s rejection of a plea agreement
          allows the defendant, not the court, to make the next
          decision with respect to the status of the plea- i.e.,
          whether to withdraw the plea and proceed to trial, or
          persist in the plea and risk a more severe sentence
          under the Sentencing Guidelines.

Id. at 1207.
14       UNITED STATES V. VALENZUELA-ARISQUETA

         stipulated sentence ceiling; or (iii) withdraw
         his plea and take his chances at trial on the
         first degree murder charge. Nowhere does
         Rule 11 provide that the district court may
         dictate this choice.

356 F.3d at 1208 (footnote omitted).

    In United States v. Patterson, 381 F.3d 859 (9th Cir.
2004), we observed that, “although the district court is free to
reject the plea agreement after accepting a guilty plea, it is
not free to vacate the plea either on the government’s motion
or sua sponte.” Id. at 865. However, our cases clarify that a
plea need not be accepted if the plea and the procedures do
not conform to Rule 11. Indeed, in Garcia-Aguilar, we
implicitly recognized that the acceptance of a guilty plea must
conform to the requirements of Rule 11.5 535 F.3d at
1024–25. Similarly, in In re Vasquez-Ramirez, we noted that
a court “must accept an unconditional guilty plea, so long as
the Rule 11(b) requirements are met.”6 443 F.3d at 695–96.


 5
   Quoting In re Vasquez-Ramirez, 443 F.3d 692, 695–96 (9th Cir. 2006),
the opinion states that a district court “must accept an unconditional guilty
plea, so long as the Rule 11(b) requirements are met.” Garcia-Aguilar,
535 F.3d at 1024. The opinion’s subsequent explanation that Rule 11
“doesn’t require judges to predict the precise maximum penalty at
sentencing” but “need only tell defendants the maximum sentence that
they could possibly face,” id. at 1025, implicitly recognizes that a plea
may be rejected where the defendant was not informed of the maximum
possible sentence.
     6
     In Vasquez-Ramirez, we noted that “our reading of Rule 11 is
consistent with the case law of other circuits.” 443 F.3d at 699. We
quoted the statement in United States v. Gomez-Gomez, 822 F.2d 1008,
1011 (11th Cir. 1987), that the “[p]roper operation of these safeguards
demands that the judge retain broad discretion to set a guilty plea aside,
         UNITED STATES V. VALENZUELA-ARISQUETA                            15

    Here, the district court correctly determined that the plea
colloquy was defective. Valenzuela had not been informed
that he faced a possible sentence of 20 years of incarceration.
Instead, he was told that the maximum sentence was two
years. Thus, when the matter came before the district judge,
she correctly determined that “the guilty plea that was entered
in this case does not satisfy the requirements of Rule 11 as
Mr. Valenzuela was not advised of the maximum penalty for
the offense for which he was charged.” See Fed. R. Crim. P.
11(b)(1)(H) (requiring that during the colloquy the court must
inform the defendant of “any maximum possible penalty,
including imprisonment, fine, and term of supervised
release”).

    Having properly rejected Valenzuela’s plea, the district
court proceeded in conformity with Ninth Circuit case law.
The court did not force a plea on Valenzuela. Rather, the
court, by setting the matter for trial and imposing a new
deadline for Valenzuela to plead, followed the procedures set
forth in Ellis, 356 F.3d at 1207. Valenzuela was given the
option of proceeding to trial or pleading guilty knowing that
“the court may dispose of the case less favorably toward the
defendant than the plea agreement contemplated.” Id.

    If jeopardy attached when the magistrate judge accepted
Valenzuela’s guilty plea without an adequate Rule 11
colloquy, it did not terminate with the rejection of


at least until he has fully discharged his Rule 11 responsibilities.”
(Emphasis added). We also noted that in United States v. Maddox,
48 F.3d 555, 556, 560 (D.C. Cir. 1995), the D.C. Circuit “found that a
district court abused its discretion by rejecting a guilty plea without regard
for whether the Rule 11(b) requirements had been met, suggesting that a
plea rejection must relate to Rule 11(b)’s requirements.” Vasquez-
Ramirez, 443 F.3d at 700.
16      UNITED STATES V. VALENZUELA-ARISQUETA

Valenzuela’s plea, as he retained all his rights. He continued
to have the options of proceeding to trial, pleading guilty, or
seeking to negotiate another plea agreement.7 Thus,
Valenzuela’s constitutional right not be subjected to double
jeopardy has not been violated.

                                  IV

    There remains the question of whether Valenzuela’s
double jeopardy claim was nonetheless “colorable.” “We will
not exercise jurisdiction over [an] interlocutory appeal from
the denial of [a] motion to dismiss unless [the] double
jeopardy claim is ‘colorable.’” Zone, 403 F.3d at 1104
(quoting United States v. Price, 314 F.3d 417, 420 (9th Cir.
2002)). “We will exercise jurisdiction over an interlocutory
appeal of denial of a motion to dismiss on double jeopardy
grounds if the double jeopardy claim is colorable.” United
States v. Price, 314 F.3d 417, 420 (9th Cir. 2002) (internal
quotation marks and citation omitted).

    We conclude that Valenzuela’s claim barely meets the
threshold of “colorable” because we had not clearly
reconciled our opinions in Garcia-Aguilar, Covian-Sandoval,
and Mendoza-Zaragoza, and because the procedures set forth
in Ellis, 356 F.3d at 1207, merit reiteration. However, this
opinion drains the color from any future attempt to seek an




 7
   As noted, the initial plea agreement was contingent on Valenzuela not
having any prior criminal convictions. Valenzuela does not deny that he
was convicted in 2004 of conspiring to transport illegal aliens.
         UNITED STATES V. VALENZUELA-ARISQUETA                          17

interlocutory appeal from a similar rejection of a guilty plea.8
The district court’s rejection of Valenzuela’s guilty plea is
AFFIRMED.




 8
  Future defendants may still seek appellate review through a petition for
a writ of mandamus, which was the relief sought in Garcia-Aguilar,
535 F.3d at 1024, 1026. A petition for a writ of mandamus does not
deprive the trial court of jurisdiction, see Ellis v. U.S. Dist. Court for
Western Dist. of Washington (Tacoma), 360 F.3d 1022, 1023 (9th Cir.
2004) (en banc) (noting that the “district court does not lose jurisdiction
over a case merely because a litigant files an interlocutory petition for an
extraordinary writ”).
