                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 27 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50488

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02341-JM-1

  v.
                                                 MEMORANDUM*
JOSE REFUGIO DOMINGUEZ-MEJIA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Southern District of California
                 Jeffrey T. Miller, Senior District Judge, Presiding

                           Submitted February 5, 2013**
                              Pasadena, California

Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.

       Defendant Jose Dominguez-Mejia appeals his conviction and sentence

following a guilty plea to attempted illegal reentry after deportation under 8 U.S.C.

§ 1326. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.


        *
             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).
      We review de novo whether a defendant was denied the right to conflict-free

representation. United States v. Baker, 256 F.3d 855, 859 (9th Cir. 2001). We also

review de novo whether a defendant’s guilty plea was voluntary. United States v.

Navarro-Botello, 912 F.2d 318, 320 (9th Cir. 1990). We review for plain error

Dominguez’s claim that the district court’s plea colloquy violated Federal Rule of

Criminal Procedure 11. United States v. Barraqan-Espinoza, 350 F.3d 978, 982

(9th Cir. 2003). Plain-error review in the Rule 11 context requires the defendant to

“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, 76 (2004).

      First, Dominguez’s attorney at the plea hearing did not have a conflict of

interest. A conflict of interest is “the existence of competing interests potentially

affecting counsel’s capacity to give undivided loyalty to his client’s interests.”

United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998). Here, Dominguez

concedes that his attorney acted in good faith and solely in Dominguez’s interests.

There was therefore no conflict of interest. See id. The fact that Dominguez’s

attorney assisted him in entering a voluntary guilty plea does not create a conflict.

      Second, Dominguez’s guilty plea was knowing and voluntary. “A plea is

voluntary if it represents a voluntary and intelligent choice among the alternative

courses of action open to the defendant.” United States v. Kaczynski, 239 F.3d


                                           2
1108, 1114 (9th Cir. 2001) (internal quotation marks omitted). We reject

Dominguez’s contention that a purported conflict of interest with his attorney

rendered his plea involuntary. Moreover, under the totality of the circumstances,

Dominguez’s guilty plea was knowing and voluntary. See id. Dominguez was

advised by counsel and had the assistance of a Spanish language interpreter. The

court clearly instructed him on the elements of the offense, which he

acknowledged. There is no evidence that he was confused or coerced.

      The plea colloquy also satisfied Rule 11(b)(1)(G), which requires the court

to inform the defendant of “the nature of each charge to which the defendant is

pleading.” Dominguez argues that the colloquy was inadequate because the judge

read the elements of the offense to him and he merely acknowledged that he

understood them. But Dominguez has cited no applicable authority requiring that a

defendant describe the crime in his own words.

      Finally, the plea colloquy satisfied Rule 11(b)(3), which requires the court to

“determine that there is a factual basis for the plea.” Dominguez’s attorney recited

the facts underlying the offense, and Dominguez agreed that the facts were stated

correctly. Dominguez acknowledged that he approached the port of entry and

presented his former permanent-resident card — knowing it was invalid — with

the intent to reenter the country without government consent. This description


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provided a factual basis for the essential elements of a § 1326 offense. See United

States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc); United

States v. Mancinas-Flores, 588 F.3d 677, 682 (9th Cir. 2009) (“[A] court . . . may

conclude that a factual basis exists from anything that appears on the record.”

(internal quotation marks omitted)).

      AFFIRMED.




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