United States v. Ferguson, No. 19-10228 (9th Cir. 2021)
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Ferguson and two others robbed Commerce Bank, wearing masks, then fled in a stolen car. Police quickly located the car and attempted a traffic stop. The car crashed. The men fled on foot. They were found nearby. Officers also located bags of cash (approximately $132,000) along their escape path. DNA evidence taken from recovered masks matched the co-conspirators. Charged with bank robbery and conspiracy to commit bank robbery, 18 U.S.C. 2113(a), 18 U.S.C. 371, they all pleaded guilty.
The magistrate advised the defendants of their right to a jury trial, right to confront witnesses, and right against self-incrimination. Ferguson noted that he understood and still wished to plead guilty. The magistrate did not ask Ferguson whether he was entering the plea because of force, threats, or promises, nor inquire if Ferguson was pleading guilty voluntarily. He did not question Ferguson about recent drug or alcohol use, his level of education, his understanding of the proceedings, or if he had any mental impairments but determined that Ferguson’s guilty plea was knowing and voluntary and not the result of force, threats, or promises. The Rule 11 plea colloquy for Ferguson and his co-defendants lasted about 10 minutes.
The Ninth Circuit affirmed Ferguson’s 84-month sentence, 13 months below the low end of the Guidelines range. A defendant must show the Rule 11 violation’s impact on substantial rights before a court will undo a guilty plea. Ferguson cannot make such a showing.
Court Description: Criminal Law. The panel affirmed a criminal judgment in a case in which the defendant sought to vacate his convictions because the magistrate judge who presided over his plea colloquy failed to explicitly ask him, as required by Fed. R. Crim. P. 11(b)(2), whether he was entering his plea voluntarily or whether his plea resulted from force, threats, or promises. The panel reaffirmed that a Rule 11 error doesn’t automatically lead to reversal; a defendant must continue to show a Rule 11 violation’s impact on substantial rights before this court will undo a guilty plea. The panel wrote that, assuming the magistrate judge committed a Rule 11 violation, the defendant failed to satisfy the third prong of plain-error review—an effect on substantial rights. The panel noted that the defendant didn’t argue on appeal that his plea was in fact involuntary or that it resulted from force, threats, or promises; he didn’t point to anything in the record to suggest he was incompetent to plead guilty; and he didn’t assert he would have declined to plead guilty if the magistrate judge had asked the Rule 11(b)(2) questions. The panel concluded that the defendant thus didn’t show a reasonable probability that compliance with Rule 11 would have led to a different plea. Rejecting the defendant’s suggestion that no independent showing of incompetence or vulnerability to coercion is necessary because the failure to UNITED STATES V. FERGUSON 3 comply with Rule 11(b)(2) by itself affects substantial rights, the panel wrote that the text of Rule 11(h) forecloses such a per se finding of prejudice.
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