                                                                               FILED
                            NOT FOR PUBLICATION                                 MAY 18 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 10-10562

              Plaintiff - Appellee,               D.C. No. 4:10-cr-01692-DCB-
                                                  JCG-1
  v.

RICARDO ANTONIO LOMAS,                            MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                       Argued and Submitted April 20, 2012
                            San Francisco, California

Before: SCHROEDER, THOMAS, and GRABER, Circuit Judges.

       Appellant Ricardo Lomas (“Lomas”) appeals his conviction by guilty plea to

assault on a federal officer in violation of 18 U.S.C. § 111(a)(1), (b). He contends

that the district court plainly erred when it rejected his plea agreement and failed to

advise him pursuant to Rule 11(c)(5) of the Federal Rules of Criminal Procedure.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Lomas did not raise this claim at the sentencing hearing, and no plain error

occurred because Lomas’s substantial rights were not affected. See United States

v. Escamilla-Rojas, 640 F.3d 1055, 1061–62 (9th Cir. 2011), petition for cert. filed,

___ U.S.L.W. ___ (U.S. Feb. 14, 2012) (No. 11-8864). The district court properly

advised Lomas pursuant to Rule 11(c)(5)(A) & (B) that it was rejecting the plea

agreement and it gave Lomas the opportunity to withdraw his guilty plea.

Although the district court did not advise Lomas, pursuant to Rule 11(c)(5)(C), that

if he did not withdraw in his guilty plea, the disposition of his case might be less

favorable to him than that contemplated by the plea agreement, this omission did

not have any material effect on Lomas’s substantial rights.

      The record demonstrates that Lomas knew the district court’s rejection of his

plea agreement would mean the court would likely subject him to a higher

sentencing range. The basis for the rejection of the plea agreement was that the

government had miscalculated the offense level by failing to make the 6-level

upward adjustment required under U.S.S.G. § 3A1.2(b). This 6-level upward

adjustment was required because the victim’s status as a government officer

motivated Lomas’s assault. The error came to light in the probation department’s

presentencing report (“PSR”) that Lomas reviewed with his counsel prior to the

sentencing hearing.


                                           2
      At the hearing, the district court discussed the discrepancy in open court and

made it clear that the error was the reason he rejected the plea. Lomas, after

consulting with counsel, chose to go forward on the basis of the guilty plea with

full knowledge that the applicable sentencing range would be higher than that

contemplated by the plea agreement. The PSR showed the applicable sentencing

range to be between 46 and 57 months, and Lomas was sentenced to a term of

imprisonment within this range. See United States v. Alber, 56 F.3d 1106, 1109

(9th Cir. 1995) (holding that the court’s failure to advise the defendant of

maximum possible sentence under Rule 11 prior to accepting guilty plea did not

affect the defendant’s substantial rights because the evidence showed the defendant

was already aware of the maximum sentence).

      AFFIRMED.




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