                                                                            FILED
                           NOT FOR PUBLICATION                              APR 15 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30080

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00482-JO-1

  v.
                                                 MEMORANDUM*
ARCHIE CABELLO, AKA Archibaldo
Cabello, AKA Archie Cabello, Jr., AKA
Archie P. Cabello, AKA Arquimedes
Cabello, AKA Archie Palumbo,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Oregon
                  Robert E. Jones, Senior District Judge, Presiding

                       Argued and Submitted March 2, 2015
                                Portland Oregon

Before: PAEZ and IKUTA, Circuit Judges and TIGAR,** District Judge.

       Appellant Archie Cabello appeals his convictions of conspiracy to defraud

the United States; possession of stolen bank funds; making false statements on

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jon S. Tigar, District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
credit applications; making and subscribing a false income tax return; and money

laundering conspiracy. He claims that he did not validly waive his right to counsel

and that the district court erred in denying his motions to withdraw his guilty plea.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

       Cabello’s waiver of his right to counsel was knowing and intelligent. See

Faretta v. California, 422 U.S. 806, 835 (1975). Although the district court’s

September 17, 2012, Faretta hearing was not comprehensive, the record

demonstrates that by the time Cabello waived his right to counsel on November 15,

2012, after pleading guilty, he understood “1) the nature of the charges against

him, 2) the possible penalties, and 3) the dangers and disadvantages of self-

representation.” United States v. Forrester, 512 F.3d 500, 506 (9th Cir. 2007)

(quoting United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004) (internal

quotation marks omitted); see also United States v. Balough, 820 F.2d 1485, 1488

(9th Cir. 1987); Arrendondo v. Neven, 763 F.3d 1122, 1132 (9th Cir. 2014). The

district court had discussed each of these elements in open court, and Cabello had

also filed a lengthy handwritten motion, in which he recited the charges against

him and described the requirements for the government to prove a conspiracy.

      The district court did not abuse its discretion in denying Cabello’s motions

to withdraw his guilty plea. See United States v. Ensminger, 567 F.3d 587, 590


                                          2
(9th Cir. 2009). Cabello argued before the district court that he should be

permitted to withdraw his plea because he was not guilty of the charges; because

the plea “resulted from confusion, duress and the lack of competent counsel;” and

because he believed at the time of his plea that he was only pleading guilty to

counts 1 and 51 of the indictment. Cabello abandons those arguments here, and

provides no basis for us to conclude that the district court did not exercise its

discretion appropriately. See United States v. Davis, 428 F.3d 802, 805 (9th Cir.

2005) (“[t]he defendant has the burden of demonstrating a fair and just reason for

withdrawal of a plea”).

      Cabello now argues for the first time that the district court should have

permitted him to withdraw his plea because it lacked an adequate factual basis, as

required under Rule 11. See FED. R. CRIM. P. 11(b)(3); United States v. Jones, 472

F.3d 1136, 1141 (9th Cir. 2007). Because Cabello did not raise this argument in

the district court, we review the district court’s ruling for plain error. United States

v. Collins, 684 F.3d 873, 881 (9th Cir. 2012). The record demonstrates that there

was no plain error in the district court’s Rule 11 plea colloquy because there was

an adequate factual basis for each count at the time that Cabello pleaded guilty.

Even assuming that there were a Rule 11 error, we reverse “only if it affected the

defendant’s substantial rights.” United States v. Monzon, 429 F.3d 1268, 1271 (9th


                                           3
Cir. 2005). Here, “look[ing] to the entire record and not to the plea proceedings

alone,” and considering in particular the inculpatory testimony of Cabello’s wife

and son, it is clear that there was a factual basis for Cabello’s plea. Id.; see also

United States v. Dominguez Benitez, 542 U.S. 74, 80 (2004). Therefore, any Rule

11(b)(3) error did not affect Cabello’s substantial rights and does not warrant

vacatur of his convictions.

      AFFIRMED.




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