United States of America v. Santiago Osuna-Chino

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANTIAGO OSUNA-CHINO,
Defendant - Appellant.
No. 12-50432
D.C. No. 3:12-cr-01567-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Santiago Osuna-Chino appeals from the district court’s judgment and
challenges his guilty-plea conviction for being a removed alien found in the United
States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
FILED
DEC 05 2013
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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On appeal, Osuna-Chino contends for the first time that his conviction
should be vacated because the district court failed to comply with Federal Rule of
Criminal Procedure 11(b)(1)(E) when it failed to inform him expressly that he had
a right to testify and that, by pleading guilty, he would be giving up that right. We
review for plain error, see United States v. Dominguez Benitez, 542 U.S. 74, 76
(2004), and find none. The district court advised Osuna-Chino that he had “the
right to put on a defense.” Even if this was not sufficient to comply with the rule,
given the strength of the government’s case and the substantial benefit Osuna-
Chino obtained by pleading guilty, he cannot demonstrate that the error affected
his substantial rights. See id. at 83 (to prevail on plain error review, a defendant
“must show a reasonable probability that, but for the error, he would not have
entered the plea”).
AFFIRMED.
12-50432 2

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