United States of America v. Amauje Jason Ferguson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AMAUJE J ASON FERGUSON,
Defendant-Appellant.
No. 19-10228
D.C. No.
4:18-cr-01495-
JAS-EJM-2
OPINION
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted June 16, 2021
San Francisco, California
Filed August 17, 2021
Before: Sidney R. Thomas, Chief Judge, and
Daniel A. Bress and Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Bumatay

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2 UNITED STATES V. FERGUSON
SUMMARY*
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
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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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.
COUNSEL
Darla J. Mondou (argued), Mondou Law Office, Green
Valley, Arizona, for Defendant-Appellant.
Terry M. Crist III (argued), Assistant United States
Attorney; Christina M. Cabanillas, Deputy Appellate Chief;
Michael Bailey, United States Attorney; United States
Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.
OPINION
BUMATAY, Circuit Judge:
Amauje Ferguson pleaded guilty to bank robbery and
conspiracy to commit bank robbery charges without a plea
agreement. On appeal, Ferguson seeks to vacate his
convictions because the magistrate judge presiding over his
plea colloquy failed to explicitly ask him whether he was
entering his plea voluntarily or whether his plea resulted
from force, threats, or promises. See Fed. R. Crim. P.
11(b)(2). In Ferguson’s view, this plea colloquy violated
Rule 11(b)(2) and the failure to comply with the Rule was
per se prejudicial.
But a Rule 11 error doesn’t automatically lead to
reversal. We reaffirm that a defendant must continue to
show a Rule 11 violation’s impact on substantial rights

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4 UNITED STATES V. FERGUSON
before we will undo a guilty plea. Because Ferguson can’t
make such a showing, we affirm his convictions.
I.
Ferguson and two other men robbed Commerce Bank of
Arizona in Tucson. As the men entered the bank wearing
masks and gloves, one of them yelled “[t]his is a robbery,”
and ordered everyone to the ground. After opening the
bank’s vault, the three robbers helped themselves to bags of
cash. The men then fled in a stolen black Chevrolet Malibu.
Police officers quickly located the Malibu and attempted a
traffic stop. Soon after, the car crashed, and the men fled on
foot. All three suspects were eventually found nearby and
arrested. Officers also located two bags of cash containing
approximately $132,000 along the robbers’ escape path.
DNA evidence taken from recovered masks matched
Ferguson and his two co-conspirators.
The government charged Ferguson and the two others
with bank robbery and conspiracy to commit bank robbery
in violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 371. A
magistrate judge handled the preliminary proceedings. The
magistrate judge held a change of plea hearing for Ferguson
and his co-defendants, and they all conveyed that they would
plead guilty. Ferguson and one co-defendant then pleaded
without a plea agreement, while the other co-defendant
accepted a plea agreement. The magistrate judge advised the
defendants of their right to a jury trial, right to confront
witnesses, and right against self-incrimination. Ferguson
noted that he understood the magistrate judge’s advisals and
that he still wished to plead guilty.
The magistrate judge didn’t ask Ferguson whether he
was entering the plea because of force, threats, or promises.
Neither did he inquire if Ferguson was pleading guilty

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UNITED STATES V. FERGUSON 5
voluntarily. Nor did he question Ferguson about any recent
drug or alcohol use, his level of education, his understanding
of the proceedings, or if he had any mental impairments.
Still, the magistrate determined that Ferguson’s guilty plea
was knowing and voluntary and not the result of force,
threats, or promises. The entire Rule 11 plea colloquy for
Ferguson and his co-defendants lasted no more than ten
minutes.
The district court accepted Ferguson’s guilty plea and
sentenced him to 84 months imprisonment and three years
of supervised release. This sentence was 13 months below
the low end of the 97-to-151-month Guidelines range.
II.
A.
When a defendant fails to object to a Rule 11 violation,
we review for plain error. United States v. Fuentes-Galvez,
969 F.3d 912, 915 (9th Cir. 2020). To establish plain error,
a defendant must show “(1) error, (2) that is plain, (3) that
affected substantial rights, and (4) that seriously affected the
fairness, integrity or public reputation of the judicial
proceedings.” United States v. Borowy, 595 F.3d 1045, 1049
(9th Cir. 2010) (per curiam) (simplified). To prove that an
error has affected substantial rights, a defendant must show
“a reasonable probability that, but for the error, he would not
have entered the plea.” United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
In conducting the plain-error analysis, we are “not
restricted to the record of the plea colloquy.” United States
v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008). Instead, based
on the entire record, we must determine whether a different
result was reasonably probable without the Rule 11 error.

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6 UNITED STATES V. FERGUSON
United States v. Escamilla-Rojas, 640 F.3d 1055, 1061–62
(9th Cir. 2011).
B.
Before accepting a defendant’s guilty plea, Federal Rule
of Criminal Procedure 11(b)(2) requires the district court to
“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).” In this case, the magistrate judge did not
explicitly ask Ferguson about the voluntariness of his plea or
whether it involved any force, threats, or promises.
Ferguson argues that this amounts to a Rule 11 error
requiring automatic reversal.
Assuming the magistrate judge committed a Rule 11
violation, Ferguson fails to satisfy the third plain-error
prong—an effect on substantial rights. On appeal, Ferguson
doesn’t argue that his plea was in fact involuntary or that it
resulted from force, threats, or promises. Nor does he point
to anything in the record to suggest he was incompetent to
plead guilty. Cf. United States v. Lo, 839 F.3d 777, 784 (9th
Cir. 2016) (holding that failure to comply with Rule 11(b) is
not plain error “where evidence in the record shows that the
defendant waived appellate rights knowingly and
voluntarily”). Indeed, he doesn’t assert he would have
declined to plead guilty if the magistrate judge had asked the
Rule 11(b)(2) questions. Ferguson thus hasn’t shown a
reasonable probability that compliance with Rule 11 would
have led to a different plea. Any Rule 11 violation therefore
failed to affect his substantial rights. See United States v.
Delgado-Ramos, 635 F.3d 1237, 1241 (9th Cir. 2011)
(“[B]ecause [the defendant] does not assert on appeal that he
would not have entered the plea but for the district court’s
alleged error, he has not demonstrated the probability of a

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UNITED STATES V. FERGUSON 7
different result and thus cannot show that the district court’s
action affected his substantial rights.” (simplified)).
Ferguson argues that he has established an effect on his
substantial rights based on our decision in Fuentes-Galvez.
It is true we found plain error based on similar omissions in
the Rule 11 colloquy in that case. There, we ruled that the
magistrate’s failure to “engage in direct inquiries regarding
force, threats, or promises” or “address competence to enter
the plea” was a Rule 11 error “in light of [the defendant’s]
significant mental challenges.” 969 F.3d at 916–17.
But Fuentes-Galvez’s finding of an impact on substantial
rights was based on circumstances not present here.
Fuentes-Galvez had little schooling and a history of mental
health disorders, including post-traumatic stress disorder,
depression, and anxiety. Id. at 916. He was also on various
medications to deal with several severe medical conditions.
Id. Compounding these issues, he spoke only Spanish and
had a “long history of substance abuse.” Id. at 917. We
observed that these conditions made him “especially
vulnerable to entering an involuntary plea.” Id. Under these
facts, we held that the failure to make the Rule 11(b)(2)
inquiries “created a significant enough risk of overlooking
potential involuntariness” to justify reversing the conviction.
Id.
In contrast, the record doesn’t show that Ferguson was
incompetent to plead guilty or that he was vulnerable to
coercion. Far from it: the record paints the picture of a man
who was healthy, and well-integrated into society.
According to the presentence report, he graduated from high
school, where he earned good grades and was a member of
the varsity football team. He held jobs in security and retail.
He worked as a lifeguard and volunteered at a center serving
the homeless and the mentally ill. He has no known mental

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8 UNITED STATES V. FERGUSON
health issues nor history of substance abuse. Further, during
his presentence interview, Ferguson admitted guilt and
expressed remorse. He wanted the court and others to know
his involvement in the bank robbery was “a terrible decision
based on financial problems and being around the wrong
people.” At sentencing, Ferguson again apologized to those
affected by his crimes and explained that he made a “terrible
decision” for which “there’s no excuse.” At no point did he
say he wanted to change his plea or suggest his plea was
involuntary. Instead, before sentencing, he affirmed that he
was pleading guilty because he committed the charged
crimes. Unlike the defendant in Fuentes-Galvez, Ferguson
fails to show “a reasonable probability that the [Rule
11(b)(2)] omissions could have affected his decision to
continue in his guilty plea.” See Fuentes-Galvez, 969 F.3d
at 916.
Ferguson also suggests that no independent showing of
incompetence or vulnerability to coercion is necessary here
because the failure to comply with Rule 11(b)(2) by itself
affects substantial rights. For this proposition, Ferguson
relies on our unpublished, non-precedential memorandum in
United States v. Garduno-Diaz, 816 F. App’x 229 (9th Cir.
2020). Interpreting Fuentes-Galvez, we stated that the
“failure to establish on the record that a plea is voluntary and
not the product of force, threats, or promises is inherently
prejudicial.” Id. at 230 (emphasis added). But that is not a
full statement of the law. As discussed above, 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.
The text of Rule 11 itself forecloses such a per se finding
of prejudice. According to the rule, “[a] variance from the
requirements of [Rule 11] is harmless error if it does not

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UNITED STATES V. FERGUSON 9
affect substantial rights.” Fed. R. Crim. P. 11(h). Indeed,
the Advisory Committee’s Notes, which we give “weight in
interpreting the Federal Rules of Criminal Procedure,”
United States v. Bainbridge, 746 F.3d 943, 947 (9th Cir.
2014) (simplified), made clear that “it does not inevitably
follow [from deviations from Rule 11] that . . . the
defendant’s plea of guilty . . . is invalid and subject to being
overturned[.]” Fed. R. Crim. P. 11 advisory committee’s
note to 1983 amendment. It is perhaps telling that
Subsection (h) was added to Rule 11 following a period in
which some courts of appeals automatically reversed for
even minor Rule 11 mistakes. United States v. Vonn, 535
U.S. 55, 70 (2002). Ending this practice, the Supreme Court
tells us, was “the one clearly expressed objective of Rule
11(h)[.]” Id. at 66.
Lastly, the Supreme Court has explained that the
“incentive to think and act early when Rule 11 is at stake
would prove less substantial” if plain-error did not apply.
See Vonn, 535 U.S. at 73. According to the Court, plain-
error in the context of Rule 11 should “encourage timely
objections and reduce wasteful reversals by demanding
strenuous exertion to get relief for unpreserved error.”
Dominguez Benitez, 542 U.S. at 82. Ferguson’s
interpretation of Rule 11(b)(2), however, requires no
exertion beyond proving an error occurred. We hold that this
is not the law.
III.
For these reasons, we AFFIRM the district court’s
judgment.

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