                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 22 2013

                                                                        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. 12-10159

              Plaintiff - Appellee,              D.C. No. 4:11-cr-01531-JGZ-JJM-
                                                 1
  v.

FRANCISCO JAVIER AGUILAR-                        MEMORANDUM *
MARTINEZ, AKA Javier Aguilar-
Martinez, AKA Jose Pedro Aguilar-
Martinez,

              Defendant - Appellant.



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

                           Submitted February 13, 2013 **
                             San Francisco, California

Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       Francisco Aguilar-Martinez appeals his sentence following his guilty plea to

Attempted Illegal Re-entry After Deportation, in violation of 8 U.S.C. § 1326,

enhanced by § 1326(b)(2). Aguilar-Martinez pled guilty after a F ED. R. C RIM. P. 11

colloquy with a magistrate judge. He challenges his sentence based on several

alleged Rule 11 deficiencies during the colloquy. We affirm.

       The parties are familiar with the facts. Since Aguilar-Martinez did not

object to the alleged Rule 11 violations before the district court, we review his

objections for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002). “Plain

error is (1) error, (2) that is plain, . . . (3) that affects [the defendant’s] substantial

rights . . . [and] that (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.

2005). To establish that a Rule 11 violation affected his substantial rights, Aguilar-

Martinez bears the burden of showing “a reasonable probability that, but for the

error, he would not have entered the plea.” United States v. Dominguez Benitez,

542 U.S. 74, 83 (2004).

       Aguilar-Martinez contends that the magistrate judge violated Rule 11(b)(3)

by failing to establish that he had a prior felony conviction, as required for

conviction under 8 U.S.C. § 1326(b)(2). Aguilar-Martinez rests his contention on

the fact that the magistrate judge did not mention the prior conviction during the


                                              2
plea colloquy. This argument fails. “[A] court need not rely on the plea colloquy

alone and may conclude that a factual basis exists from anything that appears on

the record,” such as a “presentence report when one is available.” United States v.

Mancinas-Flores, 588 F.3d 677, 682 (9th Cir. 2009) (internal quotations and

citations omitted). Before entering judgment, the district court adopted the

presentence report, which assessed Aguilar-Martinez’s prior conviction. The

district court established the factual basis for Aguilar-Martinez’s guilty plea in

accordance with Rule 11(b)(3). See id.

      Aguilar-Martinez argues that the magistrate judge erred by failing to inform

him that the district court would consult the Sentencing Guidelines to calculate his

sentence. The magistrate judge’s failure to mention the Sentencing Guidelines was

error. See F ED. R. C RIM. P. 11(b)(1)(M). However, Aguilar-Martinez cannot

establish a reasonable probability that “but for” the magistrate judge’s error, he

would not have pled guilty. See Dominguez Benitez, 542 U.S. at 83. Therefore, the

magistrate judge’s failure to mention the Sentencing Guidelines did not affect

Aguilar-Martinez’s substantial rights. See id. There was no reversible plain error.

See id.

      AFFIRMED.




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