                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 23 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50003

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00752-JFW-1

  v.
                                                 MEMORANDUM *
MARK ANTHONY NEAL, AKA Dwight
Anthony Alvarez, AKA Anthony Kent
Jay, AKA Anthony Joy, AKA Anthony
Kent Joy, AKA Anthony Mark Neal, AKA
Michael Anthony Pollard,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                       Argued and Submitted August 2, 2011
                               Pasadena, California

Before: REINHARDT and BERZON, Circuit Judges, and KENNELLY, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for Northern Illinois, sitting by designation.
      Mark Anthony Neal appeals his conviction and sentence for unlawful

reentry after deportation in violation of 8 U.S.C. § 1326, arguing that the district

court abused its discretion by rejecting his guilty plea, thereby subjecting him to a

higher sentence. Because the district court’s basis for rejecting Neal’s plea is not

entirely clear from the record and may well have been erroneous, we vacate the

rejection of his plea and remand with directions to hold a new plea hearing.

      1. It is probable that the district court rejected Neal’s guilty plea because it

believed that Neal’s refusal to affirmatively admit alienage necessarily fatally

undermined the plea’s factual basis. Such a ground for rejecting the plea would

constitute error. A court “may conclude that a factual basis exists from anything

that appears on the record.” United States v. Mancinas-Flores, 588 F.3d 677, 682

(9th Cir. 2009). Where a defendant is unable or unwilling to admit an element of

the crime, “the court must look to other evidence in the record to determine

whether the plea has a factual basis.” Id. (emphasis added).

      2. It is also possible that the district court found that the plea lacked factual

basis on the record before it. Such a conclusion would have been an abuse of

discretion. As Neal specifically noted during the plea colloquy, the government

had a copy of Neal’s Belizean birth certificate, which would have established




                                           2
alienage. Indeed, it was that birth certificate that was used at the ensuing trial to

establish alienage.

      3. Finally, it is possible that the district court believed it had discretion to

reject an Alford plea—a plea by a defendant who maintains his innocence—despite

there being an adequate factual basis for a guilty plea. North Carolina v. Alford,

400 U.S. 25, 36 (1970).

      First, it may well be that Neal’s plea was not an Alford plea. He was not

maintaining his innocence but, instead, saying that he could not attest to his guilt,

for lack of knowledge.

      Second, a conflict exists in our case law regarding whether district courts in

fact have such discretion regarding Alford pleas. Compare United States v.

O’Brien, 601 F.2d 1067, 1069 (9th Cir. 1979), with In re Vasquez-Ramirez, 443

F.3d 692, 695 (9th Cir. 2006). We need not resolve this conflict in the present

case, because it is not clear that the district court in fact believed that Neal’s was an

Alford plea, or that it was exercising its discretion to refuse such a plea. See

Mancinas-Flores, 588 F.3d at 682. Moreover, even if the district court rejected the

plea on discretionary grounds because it viewed it as an Alford plea, no valid

reasons for a discretionary rejection appear on the present record. Without such an




                                            3
explanation, we cannot review for abuse of discretion. Cf. United States v. Carty,

520 F.3d 984, 992 (9th Cir. 2008).

      Accordingly, we VACATE the district court’s rejection of Neal’s plea and

REMAND for a new plea hearing, with instructions that the district court allow

Neal to offer his plea under the terms of the original plea agreement. See

Mancinas-Flores, 588 F.3d at 688. The district court must either accept the plea

pursuant to Rule 11(b)(3) or clearly state proper reasons for rejecting it.




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