                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                          No. 17-10107
               Plaintiff-Appellee,
                                                     D.C. No.
                     v.                          CR 14-1167 GMS

 NEAL MARTIN BAIN,
            Defendant-Appellant.                      OPINION


       Appeal from the United States District Court
                for the District of Arizona
      G. Murray Snow, Chief District Judge, Presiding

          Argued and Submitted November 16, 2018
                  San Francisco, California

                          Filed June 11, 2019

   Before: A. Wallace Tashima and Milan D. Smith, Jr.,
  Circuit Judges, and Lawrence L. Piersol,* District Judge.

                    Opinion by Judge Tashima




    *
      The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
2                     UNITED STATES V. BAIN

                            SUMMARY**


                            Criminal Law

   The panel reversed a conviction for armed bank robbery,
vacated a sentence, and remanded for further proceedings.

    The panel held that the defendant’s inadvertent placement
of a closed pocket knife on the bank counter did not
constitute the “use” of a dangerous weapon under 18 U.S.C.
§ 2113(d); and the district court therefore committed plain
error under Fed. R. Crim. P. 11(b)(3) by accepting, without a
sufficient factual basis, the defendant’s guilty plea to armed
bank robbery. The panel held that the plain error affected the
defendant’s substantial rights because it is reasonably
probable that the defendant would not have pleaded guilty to
that count, but for the Rule 11 error.


                             COUNSEL

Tonya Jill Peterson (argued), Law Office of Tonya J.
Peterson, Phoenix, Arizona, for Defendant-Appellant.

Andrew C. Stone (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A.
Strange, First Assistant United States Attorney; United States
Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee.




    **
       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. BAIN                     3

                         OPINION

TASHIMA, Circuit Judge:

    Defendant Neal Bain pleaded guilty to committing armed
bank robbery. On appeal, Bain contends that the district court
violated Federal Rule of Criminal Procedure 11(b)(3) by
entering judgment on Bain’s guilty plea without a sufficient
factual basis for the plea. During the robbery, which Bain
admitted committing, Bain inadvertently placed a closed
pocket knife on the bank’s counter while pulling a plastic bag
out of his pocket. We hold that this action did not “put[] in
jeopardy the life of any person by the use of a dangerous
weapon,” which is a requirement for armed bank robbery
under 18 U.S.C. § 2113(d). Because the district court
committed plain error in accepting Bain’s guilty plea without
a sufficient factual basis, and the error affected Bain’s
substantial rights, we reverse Bain’s conviction for armed
bank robbery, vacate his sentence, and remand for further
proceedings.

                     BACKGROUND

    In 2014, Bain committed a series of bank robberies in
order to support his heroin addiction. Without the benefit of
a plea agreement, he pleaded guilty to two counts of bank
robbery in violation of 18 U.S.C. § 2113(a) (Counts 1 and 3),
and one count of armed bank robbery in violation of
18 U.S.C. § 2113(a) and (d) (Count 2).

    At issue in this appeal is the sufficiency of the evidence
for his guilty plea as to Count 2. Bain admits to committing
the robbery, but he disputes that it was an armed robbery. On
July 2, 2014, Bain entered the Tempe MidFirst Bank, walked
4                  UNITED STATES V. BAIN

up to a teller, demanded all of the money from the bottom
drawer, and kept demanding $100 bills. He then pulled a
closed folding knife and a plastic bag out of his pocket and
placed the knife on the counter. Bain never opened the knife,
i.e., exposed the blade, or threatened to use it. Bain then put
the money in the plastic bag and left the bank with $11,115.
Bain claims that he pulled out his pocket knife inadvertently
while retrieving the plastic bag from the same pocket. He
claims that he had no intention of causing fear or intimidating
the teller with the knife, and that the knife “wasn’t there for
commission of the robbery.”

     At the first change of plea hearing on June 21, 2016, Bain
pleaded guilty to Counts 1 and 3, but the hearing stalled when
the discussion turned to Count 2. After some discussion of
the elements of armed bank robbery and the factual basis for
Bain’s guilty plea to this count, the magistrate judge said:
“I’m not sure that there is a sufficient factual basis to
recommend the guilty plea to Count 2 be accepted, because
according to the parties’ agreement, the proof would have to
be that he assaulted and put in jeopardy the life of [the teller]
by the use of a dangerous weapon or device, that is, a knife.
I’m not sure placing a closed knife on the counter is an
assault or would constitute putting in jeopardy the life of [the
teller].” Ultimately, the magistrate judge did not accept a
guilty plea to Count 2 at this hearing.

    At the second change of plea hearing on August 4, 2016,
the hearing again stalled on the topic of the required factual
basis for a guilty plea to armed bank robbery. After
reviewing the factual bases proposed by Bain and the
government, the magistrate judge said that the proposed
factual basis did not “meet the elements required by the
statute or the jury instruction. So I’m not sure why we’re
                     UNITED STATES V. BAIN                             5

here.” Bain’s counsel later asked, “so are you saying that the
defendant’s proposed factual basis in this request for change
of plea hearing on Count 2 is not sufficient?” and the
magistrate judge replied, “I don’t think so.” However, after
re-reading the Ninth Circuit model jury instruction for armed
bank robbery, the magistrate judge accepted the proposed
factual basis, and both the government and Bain’s counsel
agreed that there was “enough” in the factual basis.1 The
magistrate judge then turned to Bain, and Bain expressed
confusion about what had just occurred in the proceedings:

         “THE COURT: So Mr. Bain, now to you.
         All this lawyer talk.

         THE DEFENDANT: Boy. It’s perplexing.”

The court read the proposed factual basis to Bain, and he
agreed to it:

         “THE COURT: [The factual basis says] you
         then stated you wanted all of the hundreds
         from the bottom drawer and placed a plastic
         shopping bag and a closed pocket knife on the
         counter. Is this true?

         THE DEFENDANT: Yes, Your Honor.”




    1
       The Ninth Circuit model jury instruction states, in relevant part:
“[the defendant intentionally [[struck or wounded [name of victim]] [made
a display of force that reasonably caused [name of victim] to fear bodily
harm] by using a [specify dangerous weapon or device].” 9th Cir. Crim.
Jury Instr. 8.162: Bank Robbery.
6                  UNITED STATES V. BAIN

The magistrate judge asked Bain no other questions about the
knife and made no additional findings regarding whether Bain
put the bank teller’s life in jeopardy by the use of a dangerous
weapon. Concluding the hearing, the magistrate judge said,
“it certainly seems to meet the – facts seem to meet the
elements of the Ninth Circuit jury instruction on this
offense.” The magistrate judge then recommended that
Bain’s guilty plea to Count 2 be accepted by the district court,
which the district court did.

    When Bain was given an opportunity to speak at his
sentencing hearing in front of the district judge, Bain
immediately addressed the issue of the knife on the bank
counter. Bain explained how he believed he needed the knife
for self-protection because he was living on the streets, and
said, “thank God I never had to use a weapon against
anybody.” He then discussed the bank robbery itself and
insisted that he never brandished the knife or tried to use it
during the robbery:

           When I took the bag out – normally, I
       would put the money down my shirt. Like in
       the Washington Federal robbery I put the
       money down my shirt. In this particular bank
       I had a bag and it was in my pocket. I took
       the bag out. The knife was in the same
       pocket. I put it down because my adrenaline
       – ‘cause what I’m doing is I’m not – I’m not
       concentrating on doing it.

            The employees in the bank, one of the
       tellers wasn’t even aware of the knife. The
       one teller said I put it on there but made no
       display with it. And I tell you today, Your
                        UNITED STATES V. BAIN                                  7

          Honor, that that weapon wasn’t there for
          commission of the robbery.

              If you’ll remember, my last bank robbery
          [in 1996] was with a pellet gun. And if that –
          that’s an intimidating factor, I imagine,
          brandishing a pellet gun, because it could be
          considered a real weapon. I didn’t brandish
          the knife. I simply took it out to obtain the
          bag. It was right in the same spot at the same
          time. It was – it was – I didn’t unfold it, it
          was still folded, and that’s the truth of the
          matter, Your Honor.

   The district court then sentenced Bain to 137 months of
imprisonment for Counts 1 and 3, and 197 months of
imprisonment for Count 2, with all counts to run
concurrently.

    JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction under 28 U.S.C. § 1291. When a
defendant raises an issue on appeal that was not raised before
the district court, such as the lack of a factual basis for a
guilty plea under Rule 11, our review is limited to plain
error.2 See Fed. R. Crim. P. 52(a)–(b); United States v.
Monzon, 429 F.3d 1268, 1271 (9th Cir. 2005). In assessing
the effect of a Rule 11 error, we must look to the entire record
and not to the plea proceedings alone. Id. The error requires
reversal only if it affected the defendant’s substantial rights.


     2
       “Plain error is ‘(1) error, (2) that is plain, and (3) affects substantial
rights.’” United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005)
(citation omitted).
8                  UNITED STATES V. BAIN

Id. We exercise our discretion to correct the error only if it
“seriously affects the fairness, integrity or public reputation
of judicial proceedings.” United States v. Olano, 507 U.S.
725, 732 (1993).

                       DISCUSSION

I. The factual basis requirement of Rule 11

    Before accepting and entering judgment on a guilty plea,
the district court must determine that there is a factual basis
for the plea. Fed. R. Crim. P. 11(b)(3). Bain challenges only
the factual basis for his plea to the “armed” element of
Count 2. 18 U.S.C. § 2113(d) reads: “Whoever, in
committing, or in attempting to commit, any offense defined
in subsections (a) and (b) of this section, assaults any person,
or puts in jeopardy the life of any person by the use of a
dangerous weapon or device, shall be . . . imprisoned not
more than twenty-five years.” (emphasis added). The
government concedes, as stated in its Appellee’s Brief, that
“The parties all agreed at the change of the plea hearing that
the ‘assault’ portion of the statute did not apply in this
matter.” Therefore, the only issue before this Court is
whether there was a sufficient factual basis to meet the
statutory requirement of “puts in jeopardy the life of any
person by the use of a dangerous weapon or device.” More
specifically, we focus on what constitutes the “use” of a
dangerous weapon during a bank robbery.

II. The district court committed plain error.

    Under our precedent, Bain did not use a dangerous
weapon during the bank robbery. In an early case, we held
that for aggravated robbery, the weapon must be used such
                  UNITED STATES V. BAIN                    9

that “the life of the person being robbed is placed in an
objective sta[t]e of danger.” Wagner v. United States,
264 F.2d 524, 530 (9th Cir. 1959). There, we found sufficient
use of a weapon where the robber pressed the gun to the
victim’s side “with such force that it ripped his shirt.” Id.
at 531. Later, in United States v. Coulter, 474 F.2d 1004,
1005 (9th Cir. 1973), we imputed Wagner’s “objective state
of danger” standard to § 2113(d)’s “put[ting] in jeopardy the
life of any person” element, which is at issue here.

    In United States v. Odom, we held that “a bank robber
with a concealed gun who never mentions or insinuates
having one, but who displays it inadvertently [cannot] be
convicted of armed bank robbery.” 329 F.3d 1032, 1033 (9th
Cir. 2003). We further held that the “use” of a weapon under
§ 2113(d) requires some type of “active employment” of the
weapon. Id. (citing Bailey v. United States, 516 U.S. 137,
148 (1995), superseded by statute on other grounds as
explained in Welch v. United States, 136 S. Ct. 1257, 1267
(2016)). In that case, Odom robbed a bank while he had a
gun tucked in his waistband. He used a pillowcase to carry
out the stolen money and when he put the pillowcase back in
his jacket he inadvertently displayed his gun to the bank’s
branch manager. Id. at 1036. The testimony of the branch
manager did not indicate that Odom meant to display the gun
to her or that Odom was even aware that he had displayed it.
Id. And we noted, “it seems unlikely that if he meant to
actively employ the gun during the robbery, he would have
waited until the end, after he had been given the money and
was about to depart, before doing so.” Id. Therefore, we held
that Odom did not actively employ a weapon in accordance
with the “use” requirement of § 2113(d), and reversed his
conviction. In a review of decisions affirming convictions
under § 2113(d), the Odom court found the “common
10                UNITED STATES V. BAIN

denominator” to be “that the robber knowingly made one or
more victims at the scene of the robbery aware that he had a
gun, real or not.” Id. at 1035.

    Here, Bain’s inadvertent placement of the closed pocket
knife on the counter similarly did not constitute “active
employment” of the knife. See id. at 1033. During the
robbery, Bain removed from his pocket a plastic bag for
carrying the money. As he removed the bag, he also pulled
out a closed pocket knife from the same pocket and placed
the closed knife on the counter. He never brandished or
mentioned the existence of the knife to the teller. Like in
Odom, Bain inadvertently showed his weapon to the teller
when his attention was focused elsewhere. Moreover, in both
cases the defendant never mentioned that he had a weapon or
referred to it in the course of the robbery. Id. at 1036. Bain
also did not appear to realize that he was showing the weapon
to the teller as he removed it from his pocket. Therefore, as
in Odom, we conclude that Bain did not “knowingly ma[k]e
one or more victims at the scene of the robbery aware that he
had a [weapon], real or not.” Id. at 1035.

    The government cites Bailey to argue that placing a knife
on a counter constitutes a “use” of a weapon under § 2113(d).
In Bailey, the Supreme Court held that “[t]he active-
employment understanding of ‘use’ certainly includes
brandishing, displaying, bartering, striking with, and, most
obviously, firing or attempting to fire a firearm.” 516 U.S. at
148. Furthermore, “[a] reference to a firearm calculated to
bring about a change in the circumstances of the predicate
offense is a ‘use,’ just as the silent but obvious and forceful
presence of a gun on a table can be a ‘use.’ ” Id. But the
words “obvious and forceful” and “can” are key to the
Supreme Court’s hypothetical. These words illustrate that
                       UNITED STATES V. BAIN                            11

context is critical in determining whether the silent presence
of a weapon constitutes active employment. It is not merely
the presence of the gun but rather the “obvious and forceful”
presence of the gun that can (but does not necessarily)
support a finding that a gun was used. Therefore, whether the
silent presence of a weapon constitutes a “use” under
§ 2113(d) needs to be decided on a case-by-case basis. Here,
Bain’s pocket knife on the bank counter does not carry the
same “obvious and forceful” weight as the gun in the
Supreme Court’s hypothetical. The pocket knife remained
closed and Bain did nothing to call attention to its presence;
there is no evidence that the second teller at the bank even
realized at the time of the robbery that there was a knife on
the counter.3 Thus, the silent presence of the knife on the
bank counter was not “obvious and forceful,” and Bailey does
not compel a finding that Bain’s knife was “used” in the bank
robbery. 516 U.S. at 148.

    We therefore hold that Bain’s inadvertent placement of a
closed pocket knife on the bank counter did not “put[] in
jeopardy the life of any person by the use of a dangerous
weapon or device.” See 18 U.S.C. § 2113(d). Because there
was not a sufficient factual basis to establish that Bain
committed armed bank robbery, it was plain error to enter
judgment on this guilty plea. See Fed. R. Crim. P. 11(b)(3);
United States v. Bingham, 497 F.3d 665, 669 (9th Cir. 2006)
(“For error to qualify as ‘plain,’ it must be clear-cut, so
obvious, a competent district judge should be able to avoid it
without benefit of objection.”).




   3
       The record does not disclose the length of the knife or its blade.
12                UNITED STATES V. BAIN

III.   The error affected Bain’s substantial rights.

     In order to show that a plain error affects substantial
rights, the defendant “must show a reasonable probability
that, but for the error, he would not have entered the plea,”
which would be “sufficient to undermine confidence in the
outcome of the proceeding.” Monzon, 429 F.3d at 1272.
“The reasonable-probability standard is not the same as, and
should not be confused with, a requirement that a defendant
prove by a preponderance of the evidence that but for error
things would have been different.” Id. In Monzon, the
defendant pleaded guilty to possession of a firearm in
furtherance of a drug trafficking crime. Id. at 1269. But
there was an absence of evidence showing that Monzon
intended to possess his gun “in furtherance” of his drug
trafficking crime, and Monzon “specifically objected when
the district court asked him if he in fact possessed the gun in
part to protect the drugs.” Id at 1273. The record also
appeared to show that Monzon was unaware that the amended
statement of facts he agreed to was insufficient to support the
“in furtherance” element of the crime. Id. Therefore, it was
reasonably probable that Monzon would have proceeded to
trial on the gun-related charge absent the Rule 11 error. Id.

    Bain’s case is very similar to Monzon because Bain
appeared to be unaware that the facts he agreed to were
insufficient to establish a required element of § 2113(d).
Throughout this case, including at sentencing and in the
Presentence Investigation Report, Bain has consistently and
adamantly claimed that the knife was not meant for the
robbery and that he did not intend to take the knife out of his
pocket. Bain also has confirmed that he did not brandish the
knife or even mention its presence to the teller. At his plea
hearing, Bain stated on the record that he found the
                     UNITED STATES V. BAIN                           13

discussion over the proper factual basis to be “perplexing,” so
he was likely unaware that there was an absence of evidence
to support a conviction under § 2113(d). Taken together,
these circumstances show that the Rule 11 error “likely
affected [Bain’s] assessment of his strategic position.” See
Monzon, 429 F.3d at 1272. It also shows that it was
reasonably probable that Bain would have gone to trial on the
§ 2113(d) charge absent the Rule 11 error. Thus, the plain
error affected Bain’s substantial rights and the fairness and
integrity of the judicial proceedings.4

                         CONCLUSION

     We hold that the district court committed plain error in
accepting Bain’s guilty plea to Count 2. Bain’s inadvertent
placement of a closed pocket knife on the bank’s counter did
not constitute the “use” of a dangerous weapon. We also hold
that the plain error affected Bain’s substantial rights because
it is reasonably probable that Bain would not have pleaded
guilty to Count 2, but for the Rule 11 error. We therefore,
reverse Bain’s conviction for armed bank robbery (Count 2),
vacate his entire sentence, and remand for further proceedings
consistent with this opinion.5 See United States v. Davis,
854 F.3d 601, 606 (9th Cir. 2017) (“When a defendant is
sentenced on multiple counts and one of them is later vacated
on appeal, the sentencing package comes unbundled. Under


    4
      Additionally, we note that Bain was sentenced to a 60-months
greater sentence on the armed count, than on the unarmed counts – 197
months’ imprisonment, rather than 137 months’ imprisonment.
    5
      Because we vacate Bain’s sentence on the above ground, we do not
reach his remaining contentions that his sentence was both substantively
and procedurally unreasonable.
14                   UNITED STATES V. BAIN

these circumstances, vacating the sentence is required in
order to allow the district court to put together a new package
reflecting its considered judgment as to the punishment the
defendant deserves for the crimes of which he remains
convicted.” (citations, internal quotation marks, and
alterations omitted)).6

  REVERSED in part, sentence VACATED, and
REMANDED.




     6
      Because, presumably, jeopardy has not attached, the government
may elect to take Count 2 to trial, reduce the Count 2 charge to unarmed
bank robbery, or simply dismiss Count 2. Under any of these scenarios,
Bain will have to be resentenced.
