                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                            MAR 19 2014

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

UNITED STATES OF AMERICA,                       No. 11-50519

              Plaintiff - Appellee,             D.C. No. 3:09-cr-02856-IEG-1

  v.
                                                MEMORANDUM*
ROBERT JOHN MCGILL,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                       No. 12-50244

              Plaintiff - Appellee,             D.C. No. 3:09-cr-02856-IEG-1

  v.

ROBERT JOHN MCGILL,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                Irma E. Gonzalez, Senior District Judge, Presiding

                       Argued and Submitted March 4, 2014
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ, N.R. SMITH, and HURWITZ, Circuit Judges.

      Robert McGill appeals a judgment of conviction and a life sentence imposed

after he pleaded guilty to second degree murder in violation of 18 U.S.C. §§ 7(8) and

1111(b). We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      1.     McGill argues that the district court erred by allowing the clerk to take

his guilty plea before it conducted a Rule 11 colloquy. Federal Rule of Criminal

Procedure 11(b)(1), however, requires only that the colloquy occur before the district

court “accepts a plea of guilty,” and the judge did not accept McGill’s plea until after

conducting the colloquy.

      2.     McGill also asserts that the court erred by failing to question him in open

court about all matters listed in Rule 11(b)(1). But, many of the critical rights that

McGill waived by pleading guilty were set forth in a written plea agreement that

McGill signed three days before entering his plea. McGill told the district judge that

he had reviewed the plea agreement with his attorneys, and counsel so confirmed.

More importantly, McGill did not object contemporaneously to any inadequacies in

the colloquy. A defendant “who lets Rule 11 error pass without objection in the trial

court . . . has the burden to satisfy the plain-error rule and . . . a reviewing court may

consult the whole record when considering the effect of any error on substantial

rights.” United States v. Vonn, 535 U.S. 55, 58-59 (2002). We may vacate the


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sentence only if a defendant establishes a “reasonable probability that, but for the

error, he would not have entered the plea.” United States v. Borowy, 595 F.3d 1045,

1049 (9th Cir. 2010) (internal quotation marks omitted) (quoting United States v.

Monzon, 429 F.3d 1268, 1272 (9th Cir. 2005)). McGill has not met that burden. And,

because the record as a whole demonstrates the plea was entered voluntarily and

knowingly, we reject McGill’s argument that any omitted information resulted in

structural error.

       3.     McGill also argues that the district court erred when it denied his motion

to withdraw his plea because, when he made the motion, only the custodial portion of

his sentence had been imposed and the district court had not yet ordered any

restitution. McGill argues that the judgment was therefore not final when he made his

motion and that, accordingly, he was entitled to withdraw his guilty plea for any “fair

and just reason.” We disagree. McGill’s sentence was final even though the amount

of restitution had not yet been determined. See 18 U.S.C. § 3582(b)(3) (stating that

a judgment that includes a sentence of imprisonment is a final judgment).

       4.     McGill contends that the district court erred procedurally in determining

his sentence by finding facts that it previously stated it would not rely upon in

sentencing, not giving an adequate explanation for an upward departure, and failing

to consider fully the sentencing factors in 18 U.S.C. § 3553(a). The district court,


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however, relied only upon facts that were uncontested or apparent on the face of the

record, adequately justified its upward departure based upon the heinous nature of the

crime, and appropriately considered the § 3553(a) factors in arriving at its sentence.

      5.     The district court did not impose a substantively unreasonable sentence.

The court noted the brutal nature of the murder, the suffering of the victim, and the

special relationship of trust McGill had with the victim—his wife.            McGill’s

disagreement with the district court’s weighing of the § 3553(a) factors does not

render the sentence substantively unreasonable.

      6.     The district court did not err in denying McGill a third level of reduction

for acceptance of responsibility. The government has discretion whether to file a

motion for a third level of reduction for acceptance of responsibility, and its refusal

to do so in this case was neither arbitrary nor for unconstitutional reasons. United

States v. Espinoza-Cano, 456 F.3d 1126, 1136 (9th Cir. 2006).

      7.     The district court did not use judge-found facts to impose a sentence in

violation of the Sixth Amendment. The sentence imposed was within the statutory

range permitted by guilty plea alone. In any event, the court relied only on

uncontroverted facts in imposing sentence.

      AFFIRMED.




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