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United States of America v. Gilberto Aguilar-Vera

October 29, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GILBERTO AGUILAR-VERA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding D.C. No. 4:10-cr-00049- DCB-1

The opinion of the court was delivered by: Bea, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

March 13, 2012-San Francisco, California

Before: J. Clifford Wallace, Dorothy W. Nelson, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

OPINION

On December 8, 2009, Defendant-Appellant Gilberto Aguilar-Vera was arrested and charged with violating 8 U.S.C. § 1325, misdemeanor illegal entry by an alien. The next day, Aguilar-Vera was brought before a magistrate judge in federal court in Arizona for a guilty plea proceeding that was part of Operation Streamline, which is "a procedure for the taking of pleas en masse." United States v. EscamillaRojas, 640 F.3d 1055, 1058 (9th Cir. 2011).

On appeal, Aguilar-Vera contends that his plea violated Federal Rule of Criminal Procedure 11(b)(2), which states that "[b]efore accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement)." We have several times before held that certain aspects of group plea proceedings violate various provisions of Rule 11, and we follow those precedents and again conclude there was Rule 11 error. Escamilla-Rojas, 640 F.3d at 1060; United States v. Roblero-Solis, 588 F.3d 692, 700 (9th Cir. 2009).

However, in Escamilla-Rojas-our last encounter with Operation Streamline in a published opinion-we held that the error was harmless. Here, again, we reach the same conclusion. As we explain below, the fact that harmless error doctrine exists means that there are some errors, no matter how clear, that our court may not correct by vacating a conviction. This is one of those errors.

I.

The facts of this case are uncontested. We recite them as stated by the district court, with minor modifications.

On December 8, 2009, Aguilar-Vera was arrested and charged with violating 8 U.S.C. § 1325, misdemeanor illegal entry by an alien.*fn1 On December 9, 2009, Aguilar-Vera was brought before a magistrate judge for a proceeding of Operation Streamline, which is "a procedure for the taking of pleas en masse." Escamilla-Rojas, 640 F.3d at 1058. In EscamillaRojas, we noted that Operation Streamline was created specifically "[t]o accommodate the enormous number of prosecutions for illegal entry into the United States." Id. In Operation Streamline proceedings, "a magistrate judge is assigned to preside over a group hearing of fifty to seventy defendants charged with petty misdemeanor violations of illegal entry. The hearing combines the defendants' initial appearances, guilty pleas, and sentencing hearings into one proceeding." Id.

Here, Aguilar-Vera and sixty-eight other defendants were grouped together and each instructed to answer "present" if and when their names were called out. Aguilar-Vera answered from somewhere in the room. Attorneys for other defendants proceeded to announce their appearances, and Aguilar-Vera's attorney announced his appearance for Aguilar-Vera as well as for four other defendants.

The magistrate judge then instructed all the defendants about the headphone equipment used to hear the interpreter and what to do if a malfunction should occur. Then, all defense counsel affirmed that their clients wished to plead guilty to the illegal entry charge and that each defendant appeared competent.

The magistrate judge continued with the proceedings by advising all defendants en masse of their rights, the charge, elements of the offense, and the maximum penalties. She continued to talk to the entire group when addressing those who had plea agreements, and she did not distinguish these defendants from the others. For instance, the district court issued the following en masse advisement:

Some of you have signed written plea agreements with the government. And according to the terms of those agreements, in exchange for your pleading guilty, the government will dismiss the - will dismiss the felony offense of illegal re-entry. The plea agreement also contains the number or the amount of time that the government wants me to give you as a sentence.

If you plead guilty, I will accept that plea agreement and I will give you the amount of time that is in the agreement with credit for any time you may have already ...


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