She pled guilty to this offense during an “Operation Streamline” proceeding, which is “ ‘a procedure for the taking of pleas en masse.’ ” United States v. Escamilla–Rojas, 640 F.3d 1055, 1058 (9th Cir.2011), cert. denied,––– U.S. ––––, 133 S.Ct. 101, 184 L.Ed.2d 47 (2012) (quoting United States v. Roblero–Solis, 588 F.3d 692, 693 (9th Cir.2009)). On appeal, Arqueta–Ramos argues that the plea proceeding violated Federal Rule of Criminal Procedure 11(b)(1), which requires the court to “address the defendant personally in open court.” Fed.R.Crim.P. 11(b)(1). Under Rule 11, the court must both “inform the defendant of” her pre-trial and trial rights “and determine that the defendant understands” those rights.
As we have previously explained, "[t]o accommodate the enormous number of prosecutions for illegal entry into the United States, the district court for the District of Arizona (Tucson) has adopted a procedure for the taking of pleas en masse," known as "Operation Streamline." United States v. Roblero-Solis, 588 F.3d 692, 693 (9th Cir. 2009). Under the procedure, a magistrate judge is assigned to preside over a group hearing of fifty to seventy defendants charged with petty misdemeanor violations of illegal entry.
As we have previously explained, "[t]o accommodate the enormous number of prosecutions for illegal entry into the United States, the district court for the District of Arizona (Tucson) has adopted a procedure for the taking of pleas en masse," known as "Operation Streamline." United States v. Roblero-Solis, 588 F.3d 692, 693 (9th Cir. 2009). Under the procedure, a magistrate judge is assigned to preside over a group hearing of fifty to seventy defendants charged with petty misdemeanor violations of illegal entry.
A defendant who fails to object to a Rule 11 error during trial must satisfy the plain error rule on appeal. See U.S. v. Vonn, 535 U.S. 55, 58 (2002) (plain error was the correct legal test) (citing Fed. R. Crim. P. 52(b)); U.S. v. Roblero-Solis, 588 F.3d 692, 701 (9th Cir. 2009) (plain error is the correct legal rule where Rule 11 errors were not preserved). This standard is much the same as the "harmless error" standard of review, except that under "harmless error" standard of review, the Government bears the burden of proving beyond a reasonable doubt that any error was harmless.
Neither the Supreme Court nor the Tenth Circuit has addressed whether group plea hearings involving defendants charged separately with the same or similar crimes may violate Rule 11(b), but the Ninth Circuit has. It has held that, to be sufficiently "personal" under Rule 11(b), defendants must individually answer a judge on whether they understand the nature of their crime, applicable penalties, and rights being forfeited. United States v. Roblero-Solis, 588 F.3d 692, 699-700 (9th Cir. 2009). This principle holds whether the group of defendants is large, id. at 700, or small, United States v. Arqueta-Ramos, 730 F.3d 1133, 1138-39 (9th Cir. 2013).
Petitioner argues that "where constitutional rights are allegedly at issue, a case is not moot when a procedure cuts off the possibility of appeal by the shortness of the sentence being appealed." (Doc. 22 (citing U.S. v. Roblero-Solis, 588 F.3d 692, 698 (9th Cir. 2009))). Defendants in Roblero-Solis challenged an ongoing procedure adopted by the district court for the District of Arizona (Tucson) for taking pleas en masse of defendants charged with illegal entry.
Even assuming that Miller is controlling authority that would render any error here plain, Minasyan is unable to show his substantial rights were affected. See United States v. Roblero-Solis , 588 F.3d 692, 701 (9th Cir. 2009) (a showing that substantial rights have been affected requires "a reasonable probability that, but for the error, he would not have entered the plea" (citation omitted)). Minasyan does not provide evidence that he would not have pleaded guilty if he had known the requisite intent was conjunctive, rather than disjunctive.
The Ninth Circuit, in contrast, has explicitly held that a “presumption that collateral consequences flow [is applicable to] any criminal conviction,” Chacon v. Wood , 36 F.3d 1459, 1463 (9th Cir. 1994) (quoting Hirabayashi v. United States , 828 F.2d 591, 605–06 (9th Cir. 1987) ), though this holding has been criticized within the circuit, see Larche v. Simons , 53 F.3d 1068, 1070 (9th Cir. 1995), and at least one subsequent panel has assessed the mootness of a “petty misdemeanor” without, seemingly, applying a presumption, see United States v. Roblero–Solis , 588 F.3d 692, 698 (9th Cir. 2009) (though finding an appeal from a “petty misdemeanor[ ]” not moot, citing to Spencer for the proposition that “the prospect of a higher sentence” was insufficient, by itself, to render the case justiciable, and engaging in a discussion that would seem unnecessary were the panel to have applied Chacon 's irrebuttable presumption).
We have jurisdiction under 28 U.S.C. § 1291. We review questions of law de novo, United States v. Roblero-Solis, 588 F.3d 692, 698 (9th Cir. 2009); the district court's factual determinations for clear error, Fed. R. Civ. P. 52(a)(6); and its rulings on the admissibility of expert testimony and denial of a motion to amend the judgment for abuse of discretion, Millenkamp v. Davisco Foods Int'l, Inc., 562 F.3d 971, 977 (9th Cir. 2009); Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We affirm.
Avila cites no controlling authority that clearly indicates the district court's advisements were erroneous. What is more, he has not shown that his substantial rights have been affected, that is, "a reasonable probability that, but for the error[s], he would not have entered the plea." See United States v. Roblero-Solis, 588 F.3d 692, 700 (9th Cir. 2009) (internal quotation marks omitted). There was no plain error in the district court's delivery of the advisements.