United States of America v. Ramiro Pablo-Lepe

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAMIRO PABLO-LEPE,
Defendant - Appellant.
No. 13-50027
D.C. No. 3:12-cr-04135-DMS-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted February 7, 2014 **
Pasadena, California
Before: KLEINFELD, SILVERMAN, and HURWITZ, Circuit Judges.
Ramiro Pablo-Lepe pleaded guilty. The magistrate judge who accepted his
guilty plea informed him that he had a right to confront and cross-examine
FILED
FEB 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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witnesses, a right to present a defense, and a right not to testify. But the magistrate
judge erroneously failed to inform him that he also had a right to testify. Federal
Rule of Criminal Procedure 11(b)(1) says:
Before the court accepts a plea of guilty . . . the court must address the
defendant personally in open court. During this address, the court must
inform the defendant of, and determine that the defendant understands,
the following: . . .
(E) the right at trial to confront and cross-examine adverse
witnesses, to be protected from compelled self-incrimination, to
testify and present evidence, and to compel the attendance of
witnesses
Neither the defense nor the prosecution advised the magistrate judge of his
error. We review for plain error under United States v. Benz, 472 F.3d 657,
658–59 (9th Cir. 2006). Pablo-Lepe’s burden is to show a “reasonable probability
that, but for the error, he would not have entered the plea.” United States v.
Borowy, 595 F.3d 1045, 1049 (9th Cir. 2010) (citation omitted). Among the
considerations in making this determination are, “the overall strength of the
Government’s case and any possible defenses that appear from the record,
evidence tending to show that a misunderstanding was inconsequential to the
defendant’s decision, and evidence indicating the relative significance of other
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facts that may have borne on his choice regardless of any Rule 11 error.” Id.
(internal quotation marks and citation omitted).
There is nothing in the record that diminishes the “overall strength of the
Government’s case,” nor anything that shows “any possible defenses.” Id. To the
contrary, the record shows that the magistrate judge’s mistake was
“inconsequential” to Pablo-Lepe’s decision to plead guilty. Id. So far as the
record shows, there is no “reasonable probability that, but for the error, he would
not have entered the plea.” Id.
AFFIRMED.
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