                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 28 2013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. 12-10134

              Plaintiff - Appellee,              D.C. No. 4:11-cr-03234-RCC-
                                                 BPV-1
  v.

JOSE MANUEL LOPEZ,                               MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                        Argued and Submitted May 16, 2013
                             San Francisco, California

Before: McKEOWN and WATFORD, Circuit Judges, and ZILLY, Senior District
Judge.**

       Although the Government made a favorable plea offer, defendant Jose

Manuel Lopez pleaded guilty without entering into any agreement with the

Government, and received a sentence 18 months higher than the one proposed by

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9 th Cir. R. 36-3.
       **
             The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
the Government. As a result of a recording equipment malfunction, no transcript

of the change of plea hearing is available. These unusual facts form the basis for

defendant’s appeal.

      The absence of a transcript or suitable recording of the plea proceedings

constitutes a violation of Federal Rule of Criminal Procedure 11(g). Contrary to

the Government’s assertion, this Rule 11(g) violation is not analyzed under the

Court Reporter Act, specifically 28 U.S.C. § 753(b), but rather is subject to

harmless error review. See Fed. R. Crim. P. 11(h). Under a harmless error

analysis, the Government bears the burden of establishing that the Rule 11

transgression had no effect on defendant’s substantial rights. E.g., United States v.

Jimenez-Dominguez, 296 F.3d 863, 866 (9th Cir. 2002). The Government has not

satisfied this burden.

      Absent a verbatim recording of the plea proceedings, it is not possible to

assess whether the requirements of Rule 11 were met. Contrary to the

Government’s contention, the Magistrate Judge’s Findings and Recommendation

are not an adequate substitute for a transcript of the change of plea hearing. The

Findings and Recommendation recite some, but not all, of the matters outlined in

Rule 11(b), provide no specifics concerning any applicable mandatory minimum or

maximum penalties, and indicate that the sentencing guidelines “apply” when, in


                                          2                                     12-10134
fact, they are only advisory, see United States v. Booker, 543 U.S. 220, 245 (2005).

Given the Government’s inability to demonstrate that the Rule 11(g) violation was

harmless, defendant is “entitled to plead anew.” McCarthy v. United States, 394

U.S. 459, 463 (1969). We therefore vacate both the judgment and the guilty plea,

and remand this matter to the district court for further proceedings.

      VACATED and REMANDED.




                                          3                                  12-10134
