United States of America v. Christopher Dominguez

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER DOMINGUEZ,
Defendant - Appellant.
Nos. 19-8021 & 19-8022
(D.C. Nos. 2:18-CR-00186-NDF-1 &
2:17-CR-00098-NDF-3)
(D. Wyo.)
_________________________________
ORDER
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ, HOLMES, MATHESON,
BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, and CARSON, Circuit
Judges.
_________________________________
These matters are before the court on appellant’s Petition for En Banc and Panel
Rehearing. We also have a response from the appellee.
Upon consideration, the request for panel rehearing is denied by the panel that
rendered the decision. The request for rehearing and the response were also circulated to
all of the judges of the court who are in regular active service. A poll was called, and a
majority voted to deny rehearing en banc. See Fed. R. App. P. 35(a). Consequently, the
request for en banc consideration is also denied.
FILED
United States Court of Appeals
Tenth Circuit
September 17, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 19-8021 Document: 010110578232 Date Filed: 09/17/2021 Page: 1

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Chief Judge Tymkovich and Judge Hartz voted to grant rehearing en banc. Judge
Hartz has prepared the attached written dissent from the denial of en banc
reconsideration.
Entered for the Court,
CHRISTOPHER M. WOLPERT, Clerk
Appellate Case: 19-8021 Document: 010110578232 Date Filed: 09/17/2021 Page: 2

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19-8021, 19-8022 – United States v. Dominguez
HARTZ, J., Circuit Judge, dissenting
I would grant en banc review of the panel opinion in this case because I believe it
sets an unfortunate precedent. The panel opinion states that a defendant can make an
intelligent decision to accept a plea bargain rather than going to trial even if the defendant
has been grossly misinformed about the risks attendant to going to trial.
Mr. Dominguez entered into a plea agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C) that set his term of imprisonment at 28 years. Among the pending
charges against him were three alleged violations of 18 U.S.C. § 924(c). It is undisputed
that when he entered his plea (to one of the § 924(c) charges and three other charges) he
had been advised (by his counsel) that if he were convicted on all three § 924(c) charges,
the minimum sentence would be 60 years as a result of the “stacking” provisions of §
924(c). It is also undisputed that the mandatory minimum sentence would actually have
been 27 years (because the amendments to the First Step Act became effective on the day
he entered his plea).
The panel opinion states that Mr. Dominguez’s misunderstanding of the
punishment for violations of § 924(c) is not material because he fully understood the
penalty he would face as a result of his guilty plea. That puzzles me. A defendant who
pleads guilty is making a choice between alternatives: pleading guilty or going to
trial. To make an intelligent choice the defendant must be adequately informed regarding
each alternative. To assess the alternative of going to trial, the defendant needs to
consider both the probability of being convicted and the consequences that would flow
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from being convicted. A very important consequence is the minimum sentence that the
judge could impose. I do not understand how a court can say that Mr. Dominguez’s
choice was adequately informed when he was provided grossly incorrect information
about the minimum sentence he could receive if he were convicted at a trial. Perhaps this
misinformation did not affect Mr. Dominguez’s choice. Litigating that issue is quite
proper. But for now, I would vote to hear the case en banc for the purpose of eliminating
an analysis that strikes me as contrary to common sense.
Appellate Case: 19-8021 Document: 010110578232 Date Filed: 09/17/2021 Page: 4

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