Opinion
21-50231
09-20-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL ANGEL MOTA, AKA Miguel Mota-Angel, Defendant-Appellant.
NOT FOR PUBLICATION
Submitted August 31, 2022 [**] Pasadena, California
Appeal from the United States District Court for the Southern District of California D.C. No. 3:20-cr-01521-CAB-1, Cathy Ann Bencivengo, District Judge, Presiding
Before: M. SMITH and R. NELSON, Circuit Judges, and DRAIN, [***] District Judge.
MEMORANDUM [*]
Miguel Angel Mota appeals his conviction for illegal reentry, in violation of 8 U.S.C. § 1326. He contends the district court violated (1) his substantial rights by accepting his guilty plea in violation of Rule 11(b)(2) of the Federal Rules of Criminal Procedure, and (2) his Sixth Amendment rights by denying his motions to substitute counsel. Mota did not raise his Rule 11 objection in the district court, so we review the claim for plain error. United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). We review the denials of his motions for substitution of counsel for abuse of discretion. United States v. Adelzo-Gonzalez, 268 F.3d 772, 777 (9th Cir. 2001). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Mota also claims the district court violated Federal Rule of Criminal Procedure 32(i)(1)(A) by failing to ask him whether he, not his counsel, had reviewed the presentence report. Because Mota acknowledges any error was harmless under United States v. Soltero, 510 F.3d 858, 864 (9th Cir. 2007), he raises the issue only to preserve it for en banc or Supreme Court review.
1. Mota claims the district court erred by failing to ask him (1) whether his guilty plea was the result of any promises, (2) how far he had gone in school, and (3) whether he understood his attorney or felt fully satisfied with the counsel, representation, and advice his attorney had given him. He also claims the court erred by failing to ask defense counsel whether Mota's plea was knowing and voluntary.
The last of these claims is factually inaccurate. The district court asked defense counsel whether he agreed that Mota's plea was voluntary after Mota affirmed that it was for the second time.
Additionally, the district court's failure to ask Mota about his education does not constitute a Rule 11 violation. Mota argues that United States v. Fuentes-Galvez, 969 F.3d 912 (9th Cir. 2020), requires a district court to explicitly ask about a defendant's schooling. It does not. Instead, in that case the question was asked to determine whether the defendant "was capable of knowingly and voluntarily entering a plea at that time." Id. The record reflects that the district court more than adequately covered both aspects of this inquiry. The district court asked Mota twice and his counsel once if he was pleading voluntarily, confirmed Mota was not taking any mind-altering substances or medications and was not having trouble understanding the proceedings, and offered Mota the opportunity to confer with counsel, which he did three times.
Nevertheless, we assume, arguendo, that the district court plainly erred by failing to ask about promises or Mota's interactions with counsel during the Rule 11 colloquy. Despite this, we find that any error was harmless because Mota has not shown an impact on his substantial rights. See, e.g., United States v. Ferguson, 8 F.4th 1143, 1146 (9th Cir. 2021) (assuming magistrate judge's failure to "explicitly ask [defendant] about the voluntariness of his plea or whether it involved any force, threats, or promises" was a Rule 11 violation but finding the error did not affect his substantial rights).
Contrary to Mota's assertions, Fuentes-Galvez, 969 F.3d 912 does not suggest that the failure to ask the questions described therein is inherently prejudicial. Ferguson, 8 F.4th at 1147 ("Fuentes-Galvez was driven by the defendant's unique susceptibility to coercion and did not announce a rule that Rule 11(b)(2) violations are always prejudicial."). And Mota does not demonstrate the same vulnerabilities as the defendant in Fuentes-Galvez. He does not argue that he has any "significant mental challenges." Fuentes-Galvez, 969 F.3d at 916. While he only completed eighth or ninth grade, we have found, in other contexts, that such limited schooling is insufficient to establish prejudice without more. See United States v. Ceja, 23 F.4th 1218, 1224 (9th Cir. 2022) (finding jury trial waiver was knowing and intelligent despite defendant's "language barrier and eighth-grade education obtained in a foreign country"), petition for cert. filed, Ceja v. United States, No. 217648 (S.Ct. Apr. 14, 2022). And the district court inquired whether Mota "was capable of knowingly and voluntarily entering a plea at that time." Fuentes-Galvez, 969 F.3d at 915.
Mota suggests there is an intra-circuit conflict between Fuentes-Galvez and Ferguson. Not so. Ferguson merely explains that defendants have read the Fuentes-Galvez holding too broadly. See Ferguson, 8 F.4th at 1147.
Mota also fails to "show a reasonable probability that, but for the error, he would not have entered the plea." Dominguez Benitez, 542 U.S. at 83. Indeed, Mota explicitly distinguished the plea colloquy from prior situations in which he felt like his counsel had been pressuring him. Additionally, the record demonstrates that Mota did not, in fact, want to go to trial. His disputes with all three attorneys involved dissatisfaction with the plea offers they presented him and the alternative of proceeding to trial. Mota had even explicitly accused his change-of-plea counsel of "threatening" him earlier in the representation by not providing him a plea offer.
2. Mota also claims the district court abused its discretion, and violated his Sixth Amendment rights, by forcing him to proceed with counsel with whom he had an irreconcilable conflict. However, as Mota concedes, because he has failed to show that the district court's presumed Rule 11 errors violated his substantial rights, his substitution of counsel claim is waived by his unconditional guilty plea. United States v. Foreman, 329 F.3d 1037, 1038-39 (9th Cir. 2003), overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947 (9th Cir. 2007) (en banc) (finding defendant's claim that district court erred by denying pre-plea motion to substitute counsel was waived by defendant's entry of unconditional guilty plea where defendant failed to demonstrate his plea was involuntary or not given intelligently).
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
[***] The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation.