                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 18-10150
                  Plaintiff-Appellee,
                                                   D.C. No.
                     v.                         4:17-cr-01646-
                                                 DCB-BPV-1
 JUAN ANTONIO FUENTES-GALVEZ,
              Defendant-Appellant.                 OPINION

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

          Argued and Submitted January 24, 2020
                San Francisco, California

                     Filed August 10, 2020

 Before: William A. Fletcher and Ryan D. Nelson, Circuit
   Judges, and William K. Sessions III, * District Judge.

                  Opinion by Judge Sessions




    *
      The Honorable William K. Sessions III, United States District
Judge for the District of Vermont, sitting by designation.
2            UNITED STATES V. FUENTES-GALVEZ

                          SUMMARY **


                          Criminal Law

    The panel reversed a conviction for illegal reentry into
the United States, and remanded, in light of the magistrate
judge’s egregious failure to comply with Fed. R. Crim.
P. 11(b)(2)’s requirements of establishing that the
defendant’s plea was voluntary.

    Reviewing for plain error, the panel noted that at a highly
abbreviated change of plea hearing, the magistrate judge did
not engage in direct inquiries regarding force, threats, or
promises, and did not address competence to enter the plea.
The panel wrote that the government’s bare bones
justifications are not enough to establish voluntariness in
light of the defendant’s significant mental challenges and the
magistrate judge’s complete lack of inquiry into whether the
plea was coerced by any threats or promises.

    The panel held that there was a reasonable probability
that the error may have affected the defendant’s decision to
plead; and that the plain error was sufficiently serious to
impinge on the fairness, integrity or public reputation of
judicial proceedings.




    **
       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. FUENTES-GALVEZ                   3

                         COUNSEL

Lee Tucker (argued), Assistant Federal Defender; Jon M.
Sands, Federal Defender; Office of the Federal Public
Defender, Tucson, Arizona; for Defendant-Appellant.

Tanya N. Miller (argued), Assistant United States Attorney;
Robert L. Miskell, Appellate Chief; Michael Bailey, United
States Attorney; United States Attorney’s Office, Tucson,
Arizona; for Plaintiff-Appellee.


                          OPINION

SESSIONS, District Judge:

    Juan Antonio Fuentes-Galvez appeals the conviction and
sentence imposed following his guilty plea to a charge of
illegal reentry into the United States in violation of 8 U.S.C.
§ 1326(a). Fuentes-Galvez challenges the validity of his
guilty plea, submitting that the district court failed to comply
with Federal Rules of Criminal Procedure 11(b)(1) and (2) in
plain error. This Court has jurisdiction pursuant to 28 U.S.C.
§ 1291. We reverse and remand.

                               I.

    On September 27, 2017, Fuentes-Galvez was arrested
near the Arizona-Mexico border and charged with attempted
reentry into the United States. He accepted a standard “all-
in-one” plea agreement, encompassing both the reentry
charge and the supervised release violation. According to
this agreement, Fuentes-Galvez was to receive a sentence
ranging from 18 to 24 months based on his Category VI
criminal history. The agreement also provided for the
unsuccessful termination of Fuentes-Galvez’s term of
4           UNITED STATES V. FUENTES-GALVEZ

supervised release, which was ongoing at the time of the
offense.

    On November 30, 2017, Fuentes-Galvez pleaded guilty
pursuant to this agreement at a change of plea hearing held
by Magistrate Judge Bernardo Velasco. The court conducted
a highly abbreviated plea colloquy at the same time as that
of another unrelated defendant, the contents of which failed
to adhere to the requirements of Rules 11(b)(1)(D), (E), (G),
(M) and Fed. R. Cr. P. 11(b)(2). Additionally, the plea
colloquy combined certain standard Rule 11 inquiries while
omitting others entirely.

    First, the court combined its discussion of the right to
plead not guilty, the right to a jury trial, the presumption of
innocence, and the government’s burden of establishing
guilt beyond a reasonable doubt into a single sentence: “You
otherwise have a right to continue with your pleas of not
guilty and have these cases decided by a jury of 12 citizens
who would be instructed that you’re presumed innocent and
that the Government must establish your guilt beyond a
reasonable doubt. Do you understand this, gentlemen?” The
court did not further explain the meaning of these terms.

    Second, the court mentioned Fuentes-Galvez’s right to
persist in a plea of not guilty only implicitly by asking:
“Have you both made a decision to give up your right to a
jury trial and enter pleas of guilty?” The court did not
expressly articulate Fuentes-Galvez’s right to continue to be
represented by counsel, or to court-appointed counsel at trial,
stating only that “you through your attorney could call your
own witnesses . . . .”

   Regarding sentencing, the magistrate judge stated the
maximum possible sentences under law and the plea
agreement, but did not otherwise discuss the Sentencing
            UNITED STATES V. FUENTES-GALVEZ                  5

Guidelines, possible departures from these Guidelines, or
other sentencing factors. The magistrate judge did not note
that the agreement contained a waiver of all collateral
attacks, save that based on ineffective assistance of counsel.

    Most importantly, the court did not make any further
inquiries to confirm Fuentes-Galvez’s competence and
intelligence to enter a plea of guilty. The magistrate judge
asked Fuentes-Galvez whether he was entering a plea of
guilty voluntarily, to which he answered “yes.” However,
Fuentes-Galvez was not asked whether he was pleading as a
result of force, threats, or promises. The magistrate judge
also did not ask defense counsel whether he thought Fuentes-
Galvez was pleading knowingly and voluntarily. The court
did not make any inquiries as to whether Fuentes-Galvez
was capable of knowingly and voluntarily entering a plea at
that time (e.g., whether he was under the care of a physician,
whether he was taking any medication, how far he had gone
through school, or other questions that might bear on
whether Fuentes-Galvez understood the nature of his plea).
Finally, the magistrate judge did not ask Fuentes-Galvez
whether he understood his attorney or felt fully satisfied with
the counsel, representation, and advice given to him by his
attorney.

    The magistrate judge accepted the guilty plea and
recommended its acceptance by the district court. The
district court initially accepted the plea and scheduled
sentencing, but the case was reassigned to another district
court judge, who rejected the plea agreement on grounds that
the included sentencing range was incorrectly calculated and
inadequate. On April 9, 2018, the parties submitted a revised
plea agreement calling for a sentencing range of 21 to
27 months. The district court rejected this agreement as well.
Fuentes-Galvez was given the opportunity at this time to
6           UNITED STATES V. FUENTES-GALVEZ

withdraw his guilty plea, but he opted to continue in his plea
of guilty without a plea agreement. The district court did not
engage Fuentes-Galvez in any plea colloquy meeting the
requirements of Rule 11 during any of these hearings.

    The final sentencing hearing occurred on April 16, 2018.
The court established that the Sentencing Guidelines
recommended that the defendant be given a level 10,
Criminal History VI sentence in a range of 24 to 30 months.
At the sentencing hearing, the Government asked for a
sentence of 30 months. Defense counsel told the court that a
sentencing range of “30 to 36 months” would be appropriate.
The district court imposed a sentence of 42 months of
imprisonment, one year longer than the top of the Guideline
range. Fuentes-Galvez filed a timely notice of appeal.

                              II.

    Because Fuentes-Galvez did not raise an objection to the
plea colloquy below, this Court may only review the plea
hearing for plain error. United States v. Carter, 795 F.3d
947, 950 (9th Cir. 2015) (citation omitted).

    Plain error is “an ‘error’ that is ‘plain’ and that ‘affects
substantial rights.’” United States v. Pena, 314 F.3d 1152,
1155 (9th Cir. 2003) (quoting United States v. Minore,
292 F.3d 1109, 1117 (9th Cir. 2002)). “In order for an error
to affect a substantial right, it must be prejudicial, i.e., the
error ‘must have affected the outcome of the district court
proceedings.’” United States v. Jimenez-Dominguez,
296 F.3d 867, 866 (9th Cir. 2002) (quoting United States v.
Olano, 507 U.S. 725, 734 (1993)). The defendant, who has
the burden of establishing plain error, “must show 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). “A defendant must thus satisfy the
            UNITED STATES V. FUENTES-GALVEZ                    7

judgment of the reviewing court, informed by the entire
record, that the probability of a different result is ‘sufficient
to undermine confidence in the outcome’ of the proceeding.”
Id. (quoting Strickland v. Washington, 466 U.S. 668, 694
(1984)). If there was plain error, the Court may reverse “only
if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Pena, 314 F.3d at 1115
(citations and internal quotation marks omitted).

    Under Rule 11(b)(2), “before accepting a plea of guilty
or nolo contendere, the court must address the defendant
personally in open court and determine that the plea is
voluntary and did not result from force, threats, or promises
(other than promises in a plea agreement).” In making a
determination of voluntariness, the district court must weigh
the defendant’s competence and intelligence. Rule 11
requirements were specifically adopted “[t]o avoid having to
speculate and engage in retrograde mind reading” with
regard to an individual defendant’s state of mind and
circumstances at the time of the plea. United States v.
Kennell, 15 F.3d 134, 137 (9th Cir. 1994). “[F]ailure to
satisfy a core concern of Rule 11” affects substantial rights.
See Pena, 314 F.3d at 1156–57.

                              III.

    Fuentes-Galvez contends that the district court
committed plain error by failing to comply with
Rule 11(b)(2)’s requirements of establishing that the plea
was voluntary. In light of the magistrate judge’s egregious
failure to comply with Rule 11(b)(2), which we have
previously noted is part of a disturbing “pattern,” see United
States v. Fuentes-Galvez, Case No. 18-10150 (9th Cir.
Feb. 20, 2019), we agree. We therefore reverse and remand
on these grounds. We decline to address Fuentes-Galvez’s
remaining arguments that the change of plea hearing violated
8           UNITED STATES V. FUENTES-GALVEZ

Rule 11(b)(1), that the district court abused its discretion by
imposing an above-guidelines sentence, and that his trial
counsel was ineffective.

    The magistrate judge did not engage in direct inquiries
regarding force, threats, or promises, nor did he address
competence to enter the plea. The Government argues that
the court had enough information to make a voluntariness
determination for three reasons: (1) the magistrate judge
asked whether the defendant was pleading voluntarily and
because he was guilty; (2) the magistrate judge was able to
observe Fuentes-Galvez’s overall demeanor; and
(3) Fuentes-Galvez had the ability to consult with counsel
during the colloquy. These bare bones justifications are not
enough to establish voluntariness in light of Fuentes-
Galvez’s significant mental challenges and the magistrate
judge’s complete lack of inquiry into whether the plea was
coerced by any threats or promises.

    Fuentes-Galvez showed a reasonable probability that the
district court’s omissions could have affected his decision to
continue in his guilty plea. He had little schooling and a
history of mental health disorders, including post-traumatic
stress disorder, depression, and anxiety. At the time of the
hearing, he was taking Metformin for his diabetes, as well as
unknown medications for his cholesterol and lung fluid
retention issues. Fuentes-Galvez also had a long history of
substance abuse, and he was exclusively a Spanish speaker.
In light of these facts, of which the district court was aware,
Fuentes-Galvez was especially vulnerable to entering an
involuntary plea. By failing to confirm that he was
competent and intelligent to enter the plea at the time of the
hearing, the court did not ensure that his plea was knowing
and voluntary. See United States v. Kamer, 781 F.2d 1380,
1384–85 (9th Cir. 1986) (“The requirement that the trial
            UNITED STATES V. FUENTES-GALVEZ                    9

judge adequately inquire of the defendant, at the plea
proceeding, as to the nature of the charge effectuates the
purposes of Rule 11 and the policy of efficient judicial
administration”).

    Fuentes-Galvez showed that there was a reasonable
probability that the error may have affected his decision to
plead. See United States v. Monzon, 429 F.3d 1268, 1272
(9th Cir. 2005). Under the totality of the circumstances, the
lower court’s failure to make further inquiries created a
significant enough risk of overlooking potential
involuntariness to meet this burden.

    Finally, the district court’s plain error was sufficiently
serious to impinge on “the fairness, integrity or public
reputation of judicial proceedings.” Pena, 314 F.3d at 1155
(citation omitted). The voluntariness of a guilty plea is a
constitutional requirement under the Due Process Clause of
the 5th Amendment. See McCarthy, 394 U.S. at 466. Indeed,
“[d]ue process requires a defendant’s guilty plea to be
‘equally voluntary and knowing,’ and such [a] plea must
reflect ‘an intentional relinquishment or abandonment’ of his
privilege against self-incrimination, his right to trial by jury,
and his right to confront his accusers.” United States v.
Escamilla-Rojas, 640 F.3d 1055, 1062 (9th Cir. 2011)
(quoting McCarthy, 394 U.S. at 466). The right to due
process requires the record to “disclose that a defendant who
pleaded guilty entered his plea understandingly and
voluntarily.” Brady, 397 U.S. at 747 n.4.

   In this case, the district court’s plain error prevented the
court from creating a record that establishes voluntariness as
required by the Due Process Clause and Rule 11. We reverse
and remand the conviction.

    REVERSED and REMANDED.
