UNITED STATES v. VONN

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55 OCTOBER TERM, 2001
Syllabus
UNITED STATES v. VONN
certiorari to the united states court of appeals for
the ninth circuit
No. 00–973. Argued November 6, 2001—Decided March 4, 2002
Federal Rule of Criminal Procedure 11 lays out steps that a judge must
take to ensure that a guilty plea is knowing and voluntary. Rule 11(h)’s
requirement that any variance from those procedures “which does not
affect substantial rights shall be disregarded” is similar to the general
“harmless-error” rule in Rule 52(a). However, Rule 11(h) does not in-
clude a plain-error provision comparable to Rule 52(b), which provides
that a defendant who fails to object to trial error may nonetheless have
a conviction reversed by showing among other things that plain error
affected his substantial rights. After respondent Vonn was charged
with federal bank robbery and firearm crimes, the Magistrate Judge
twice advised him of his constitutional rights, including the right to be
represented by counsel at every stage of the proceedings; Vonn signed
a statement saying that he had read and understood his rights; and he
answered yes to the court’s questions whether he had understood the
court’s explanation of his rights and whether he had read and signed
the statement. When Vonn later pleaded guilty to robbery, the court
advised him of the constitutional rights he was relinquishing, but
skipped the advice required by Rule (11)(c)(3) that he would have the
right to assistance of counsel at trial. Subsequently, Vonn pleaded
guilty to the firearm charge and to a later-charged conspiracy count.
Again, the court advised him of the rights he was waiving, but did not
mention the right to counsel. Eight months later, Vonn moved to with-
draw his guilty plea on the firearm charge but did not cite Rule 11 error.
The court denied the motion and sentenced him. On appeal, he sought
to set aside all of his convictions, for the first time raising Rule 11. The
Ninth Circuit agreed that there had been error and held that Vonn’s
failure to object before the District Court to the Rule 11 omission was
of no import because Rule 11(h) subjects all Rule 11 violations to
harmless-error review. Declining to go beyond the plea proceeding in
considering whether Vonn was aware of his rights, the court held that
the Government had not met its burden, under harmless-error review,
of showing no effect on substantial rights, and vacated the convictions.
Held:
1. A defendant who lets Rule 11 error pass without objection in the
trial court must satisfy Rule 52(b)’s plain-error rule. Pp. 62–74.

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56 UNITED STATES v. VONN
Syllabus
(a) Relying on the canon that expressing one item of a commonly
associated group or series excludes another left unmentioned, Vonn
claims that Rule 11(h)’s specification of harmless-error review shows an
intent to exclude the plain-error standard with which harmless error is
paired in Rule 52. However, this canon is only a guide, whose fallibility
can be shown by contrary indications that adopting a particular rule or
statute was probably not meant to signal any exclusion of its common
relatives. Here, the harmless- and plain-error alternatives are associ-
ated together in Rule 52, having apparently equal dignity with Rule
11(h), and applying by its terms to error in the application of any other
Rule of Criminal Procedure. To hold that Rule 11(h)’s terms imply that
the latter half of Rule 52 has no application to Rule 11 errors would
amount to finding a partial repeal of Rule 52(b) by implication, a result
sufficiently disfavored, Ruckelshaus v. Monsanto Co., 467 U. S. 986,
1017, as to require strong support. Support, however, is not readily
found, for Vonn has merely selected one possible interpretation of the
supposedly intentional omission of a Rule 52(b) counterpart while logic
would equally allow a reading that, without a plain-error rule, a silent
defendant has no right of review on direct appeal. Pp. 63–66.
(b) Vonn attempts to find support for his reading by pointing be-
yond the Rule’s text to McCarthy v. United States, 394 U. S. 459—which
was decided when Rule 11 was relatively primitive—and the develop-
ments in that case’s wake culminating in Rule 11(h)’s enactment. One
clearly expressed Rule 11(h) objective was to end the practice of revers-
ing automatically for any Rule 11 error, a practice stemming from read-
ing McCarthy expansively to require that Rule 52(a)’s harmless-error
provision could not be applied in Rule 11 cases. However, McCarthy
had nothing to do with the choice between harmless-error and plain-
error review. Nor is there any persuasive reason to think that when
the Advisory Committee and Congress considered Rule 11(h) they ac-
cepted the view Vonn erroneously attributes to this Court in McCarthy.
The Advisory Committee focused on the disarray, after McCarthy,
among Courts of Appeals in treating trivial errors. The cases cited in
the Committee’s Notes cannot reliably be read to suggest that plain-
error review should never apply to Rule 11 errors, when the Notes
never made such an assertion and the cases never mentioned the plain-
error/harmless-error distinction. Rather, the Committee should be
taken at its word that the harmless-error provision was added because
some courts read McCarthy to require that Rule 52(a)’s general
harmless-error provision did not apply to Rule 11 proceedings. The
Committee implied nothing more than it said, and it certainly did not
implicitly repeal Rule 52(b) so far as it might cover a Rule 11 case.
Pp. 66–71.

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Syllabus
(c) Vonn’s position would also have a tendency to undercut the ob-
ject of Rule 32(e), which governs guilty plea withdrawal by creating an
incentive to file withdrawal motions before sentence, not afterward.
This tends to separate meritorious second thoughts and mere sour
grapes over a sentence once pronounced. But the incentive to think
and act early when Rule 11 is at stake would prove less substantial if a
defendant could be silent until direct appeal, when the Government
would always have the burden to prove harmlessness. Pp. 72–74.
2. A reviewing court may consult the whole record when considering
the effect of any Rule 11 error on substantial rights. The Advisory
Committee intended the error’s effect to be assessed on an existing rec-
ord, but it did not mean to limit that record strictly to the plea proceed-
ing, as the Ninth Circuit did here. McCarthy ostensibly supports that
court’s position; but it was decided before Rule 11(h) was enacted, and
it was not a case with a record on point. Here, in addition to the tran-
script of the plea hearing and Rule 11 colloquy, the record shows that
Vonn was advised of his right to trial counsel during his initial appear-
ance and twice at his first arraignment, and that four times either he or
his counsel affirmed that he had heard or read a statement of his rights
and understood them. Because there are circumstances in which de-
fendants may be presumed to recall information provided to them prior
to the plea proceeding, cf. Bousley v. United States, 523 U. S. 614, 618,
the record of Vonn’s initial appearance and arraignments is relevant in
fact and well within the Advisory Committee’s understanding of the
record that should be open to consideration. Since the transcripts of
Vonn’s first appearance and arraignment were not presented to the
Ninth Circuit, this Court should not resolve their bearing on his claim
before the Ninth Circuit has done so. Pp. 74–76.
224 F. 3d 1152, vacated and remanded.
Souter, J., delivered the opinion of the Court, Part III of which was
unanimous, and Parts I and II of which were joined by Rehnquist, C. J.,
and O’Connor, Scalia, Kennedy, Thomas, Ginsburg, and Breyer, JJ.
Stevens, J., filed an opinion concurring in part and dissenting in part,
post, p. 76.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the briefs were Solicitor
General Olson, Acting Solicitor General Underwood, Acting
Assistant Attorney General Keeney, Paul R. Q. Wolfson,
and Joel M. Gershowitz.

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58 UNITED STATES v. VONN
Opinion of the Court
Monica Knox argued the cause for respondent. With her
on the brief was Maria E. Stratton.*
Justice Souter delivered the opinion of the Court.
The Government avoids reversal of a criminal conviction
by showing that trial error, albeit raised by a timely objec-
tion, affected no substantial right of the defendant and was
thus harmless. Fed. Rule Crim. Proc. 52(a). A defendant
who failed to object to trial error may nonetheless obtain
reversal of a conviction by carrying the converse burden,
showing among other things that plain error did affect his
substantial rights. Fed. Rule Crim. Proc. 52(b).
Rule 11(h) of the Federal Rules of Criminal Procedure is
a separate harmless-error rule applying only to errors com-
mitted under Rule 11, the rule meant to ensure that a guilty
plea is knowing and voluntary, by laying out the steps a trial
judge must take before accepting such a plea. Like Rule
52(a), it provides that a failure to comply with Rule 11 that
“does not affect substantial rights shall be disregarded.”
Rule 11(h) does not include a plain-error provision compara-
ble to Rule 52(b).
The first question here is whether a defendant who lets
Rule 11 error pass without objection in the trial court must
carry the burdens of Rule 52(b) or whether even the silent
defendant can put the Government to the burden of prov-
ing the Rule 11 error harmless.1 The second question is
*Saul M. Pilchen and David M. Porter filed a brief for the National
Association of Criminal Defense Lawyers et al. as amici curiae urging
affirmance.
1 This question is rightly before us even though the Government did not
urge the Court of Appeals to adopt a plain-error standard. As the Court
of Appeals recognized, 224 F. 3d 1152, 1155 (CA9 2000), this position was
squarely barred by Circuit precedent holding that any Rule 11 error is
subject to harmless-error review. United States v. Odedo, 154 F. 3d 937,
940 (CA9 1998). Although the Government did not challenge Odedo as
controlling precedent, we have previously held that such a claim is pre-
served if made by the current litigant in “the recent proceeding upon

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whether a court reviewing Rule 11 error under either stand-
ard is limited to examining the record of the colloquy be-
tween court and defendant when the guilty plea was entered,
or may look to the entire record begun at the defendant’s
first appearance in the matter leading to his eventual plea.
We hold that a silent defendant has the burden to satisfy
the plain-error rule and that a reviewing court may consult
the whole record when considering the effect of any error on
substantial rights.
I
On February 28, 1997, respondent Alphonso Vonn was
charged with armed bank robbery, under 18 U. S. C.
§§ 2113(a) and (d), and using and carrying a firearm during
and in relation to a crime of violence, under 18 U. S. C.
§ 924(c). Vonn appeared that day before a Magistrate Judge,
who advised him of his constitutional rights, including “the
right to retain and to be represented by an attorney of [his]
own choosing at each and every sta[g]e of the proceedings.”
App. 15. Vonn said that he had heard and understood his
rights, and the judge appointed counsel to represent him.
On March 17, 1997, three days after being indicted, Vonn,
along with his appointed counsel, appeared in court for his
arraignment. Again, the Magistrate Judge told Vonn about
his rights, including the right to counsel at all stages of the
proceedings. Vonn’s counsel gave the court a form entitled
“Statement of Defendant’s Constitutional Rights,” on which
which the lower courts relied for their resolution of the issue, and [the
litigant] did not concede in the current case the correctness of that prece-
dent.” United States v. Williams, 504 U. S. 36, 44–45 (1992). Although
there evidently was some confusion as to the Government’s precise posi-
tion in Odedo, presumably because the Government argued there, as here,
that failure to raise a Rule 11 objection constitutes “waiver,” the Court of
Appeals understood the Government to contend that “forfeited error” is
subject to plain-error review. That, coupled with the fact that the Gov-
ernment did not concede below that Odedo was correctly decided, is
enough for us to take up this question.

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Vonn said he understood his rights, including the right to
counsel. His counsel signed a separate statement that he
was satisfied that Vonn had read and understood the state-
ment of his rights. The Clerk of Court then asked Vonn
whether he had heard and understood the court’s explanation
of his rights, and whether he had read and signed the state-
ment, and Vonn said yes to each question.
On May 12, 1997, Vonn came before the court and indicated
that he would plead guilty to armed bank robbery but would
go to trial on the firearm charge. The court then addressed
him and, up to a point, followed Rule 11(c)(3) of the Federal
Rules of Criminal Procedure. The judge advised Vonn of
the constitutional rights he would relinquish by pleading
guilty, but skipped the required advice that if Vonn were
tried he would have “the right to the assistance of counsel.”
Several months later, the stakes went up when the grand
jury returned a superseding indictment, charging Vonn
under an additional count of conspiracy to commit bank rob-
bery. Although he first pleaded not guilty to this charge as
well as the firearm count, at a hearing on September 3, 1997,
Vonn said he intended to change both pleas to guilty. Again,
the court advised Vonn of rights waived by guilty pleas, but
failed to mention the right to counsel if he went to trial.
This time, the prosecutor tried to draw the court’s attention
to its error, saying that she did not “remember hearing the
Court inform the defendant of his right to assistance of coun-
sel.” Id., at 61. The court, however, may have mistaken
the remark as going to Rule 11(c)(2), and answered simply
that Vonn was represented by counsel.2
Eight months later, Vonn moved to withdraw his guilty
plea on the firearm charge. He did not, however, cite Rule
11 error but instead based his request on his own mistake
2 Rule 11(c)(2) provides that “if the defendant is not represented by an
attorney,” the court must inform the defendant that he “has the right to
be represented by an attorney at every stage of the proceeding and, if
necessary, one will be appointed to represent [him].”

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about facts relevant to the charge. The court denied this
motion, and on June 22, 1998, sentenced Vonn to 97 months
in prison.
On appeal, Vonn sought to set aside not only the firearm
conviction but the other two as well, for the first time mak-
ing an issue of the District Judge’s failure to advise him of
his right to counsel at trial, as required by the Rule. The
Court of Appeals agreed there had been error, and held that
Vonn’s failure to object before the District Court to its Rule
11 omission was of no import, since Rule 11(h) “supersedes
the normal waiver rule,” and subjects all Rule 11 violations
to harmless-error review, 224 F. 3d 1152, 1155 (CA9 2000)
(citing United States v. Odedo, 154 F. 3d 937 (CA9 1998)).
The consequence was to put the Government to the burden
of showing no effect on substantial rights.3 The court de-
clined to “go beyond the plea proceeding in considering
whether the defendant was aware of his rights,” and did not
accept the record of Vonn’s plea colloquies as evidence that
Vonn was aware of his continuing right to counsel at trial.
224 F. 3d, at 1155. It held the Government had failed to
shoulder its burden to show the error harmless and vacated
Vonn’s convictions.
We granted certiorari, 531 U. S. 1189 (2001), to resolve con-
flicts among the Circuits on the legitimacy of (1) placing the
burden of plain error on a defendant appealing on the basis
of Rule 11 error raised for the first time on appeal,4 and
(2) looking beyond the plea colloquy to other parts of the
3 As already noted, n. 1, supra, the Government in this case did not
specifically argue that the plain-error rule, Rule 52(b), governs this case;
that was its position in Odedo, 154 F. 3d, at 939, on which the Court of
Appeals relied for authority here. Hence, the Court of Appeals in this
case went no further than to reject the Government’s waiver argument.
4 Compare, e. g., 224 F. 3d, at 1155 (case below); United States v. Lyons,
53 F. 3d 1321, 1322, n. 1 (CADC 1995), with United States v. Gandia-
Maysonet, 227 F. 3d 1, 5–6 (CA1 2000); United States v. Bashara, 27 F. 3d
1174, 1178 (CA6 1994); United States v. Cross, 57 F. 3d 588, 590 (CA7 1995);
and United States v. Quinones, 97 F. 3d 473, 475 (CA11 1996).

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official record to see whether a defendant’s substantial rights
were affected by a deviation from Rule 11.5 We think the
Court of Appeals was mistaken on each issue, and vacate
and remand.
II
Rule 11 of the Federal Rules of Criminal Procedure re-
quires a judge to address a defendant about to enter a plea
of guilty, to ensure that he understands the law of his crime
in relation to the facts of his case, as well as his rights as a
criminal defendant. The Rule has evolved over the course
of 30 years from general scheme to detailed plan, which now
includes a provision for dealing with a slip-up by the judge
in applying the Rule itself. Subsection (h) reads that “[a]ny
variance from the procedures required by this rule which
does not affect substantial rights shall be disregarded.”
The language comes close to tracking the text of Rule 52(a),
providing generally for “harmless-error” review, that is, con-
sideration of error raised by a defendant’s timely objection,
but subject to an opportunity on the Government’s part to
carry the burden of showing that any error was harmless, as
having no effect on the defendant’s substantial rights. See
Fed. Rule Crim. Proc. 52(a) (“Any error, defect, irregularity
or variance which does not affect substantial rights shall be
disregarded”); United States v. Olano, 507 U. S. 725, 734
(1993).
Rule 52(a), however, has a companion in Rule 52(b), a
“plain-error” rule covering issues not raised before the dis-
trict court in a timely way: “Plain errors or defects affecting
substantial rights may be noticed although they were not
brought to the attention of the court.” When an appellate
court considers error that qualifies as plain, the tables are
turned on demonstrating the substantiality of any effect on
5 Compare, e. g., 224 F. 3d, at 1155, with United States v. Parkins, 25
F. 3d 114, 118 (CA2 1994); United States v. Johnson, 1 F. 3d 296, 302 (CA5
1993); United States v. Lovett, 844 F. 2d 487, 492 (CA7 1988); United States
v. Jones, 143 F. 3d 1417, 1420 (CA11 1998); and Lyons, supra, at 1322–1323.

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a defendant’s rights: the defendant who sat silent at trial has
the burden to show that his “substantial rights” were af-
fected. Id., at 734–735. And because relief on plain-error
review is in the discretion of the reviewing court, a defend-
ant has the further burden to persuade the court that the
error “ ‘seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.’ ” Id., at 736 (quoting
United States v. Atkinson, 297 U. S. 157, 160 (1936)).
The question here is whether Congress’s importation of
the harmless-error standard into Rule 11(h) without its com-
panion plain-error rule was meant to eliminate a silent de-
fendant’s burdens under the Rule 52(b) plain-error review,
and instead give him a right to subject the Government to
the burden of demonstrating harmlessness. If the answer
is yes, a defendant loses nothing by failing to object to obvi-
ous Rule 11 error when it occurs. We think the answer
is no.
A
Vonn’s most obvious recourse is to argue from the text
itself: Rule 11(h) unequivocally provides that a trial judge’s
“variance” from the letter of the Rule 11 scheme shall be
disregarded if it does not affect substantial rights, the classic
shorthand formulation of the harmless-error standard. It
includes no exception for nonobjecting defendants.
Despite this unqualified simplicity, however, Vonn does not
argue that Rule 11 error must always be reviewed on the
11(h) standard, with its burden on the Government to show
an error harmless. Even though Rule 11(h) makes no dis-
tinction between direct and collateral review, Vonn does not
claim even that the variant of harmless-error review applica-
ble on collateral attack, see Brecht v. Abrahamson, 507 U. S.
619, 638 (1993), would apply when evaluating Rule 11 error
on habeas review. Rather, he concedes that the adoption of
11(h) had no effect on the stringent standard for collateral
review of Rule 11 error under 28 U. S. C. § 2255 (1994 ed.),
as established by our holding in United States v. Timmreck,

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441 U. S. 780 (1979), that a defendant cannot overturn a
guilty plea on collateral review absent a showing that the
Rule 11 proceeding was “ ‘inconsistent with the rudimentary
demands of fair procedure’ ” or constituted a “ ‘complete
miscarriage of justice,’ ” id., at 783 (quoting Hill v. United
States, 368 U. S. 424, 428 (1962)). The concession is prudent,
for the Advisory Committee Notes explaining the adoption
of Rule 11(h) speak to a clear intent to leave Timmreck un-
disturbed, 6 and there is no question of Timmreck’s validity
in the aftermath of the 1983 amendments.
Whatever may be the significance of the text of Rule 11(h)
for our issue, then, it cannot be as simple as the face of the
provision itself. Indeed, the closest Vonn gets to a persua-
sive argument that Rule 11 excuses a silent defendant from
the burdens of plain-error review is his invocation of the
common interpretive canon for dealing with a salient omis-
sion from statutory text. He claims that the specification of
harmless-error review in 11(h) shows an intent to exclude
the standard with which harmless error is paired in Rule 52,
the plain-error standard with its burdens on silent defend-
ants. The congressional choice to express the one standard
of review without its customary companion does not, how-
ever, speak with any clarity in Vonn’s favor.
6 In the absence of a clear legislative mandate, the Advisory Committee
Notes provide a reliable source of insight into the meaning of a rule, espe-
cially when, as here, the rule was enacted precisely as the Advisory Com-
mittee proposed. See Beech Aircraft Corp. v. Rainey, 488 U. S. 153, 165–
166, n. 9 (1988) (where “Congress did not amend the Advisory Committee’s
draft in any way . . . the Committee’s commentary is particularly relevant
in determining the meaning of the document Congress enacted”). Al-
though the Notes are the product of the Advisory Committee, and not
Congress, they are transmitted to Congress before the rule is enacted
into law. See Amendments to Rules of Criminal Procedure, H. R. Doc.
No. 98–55 (1983) (submitting to Congress amendments to the Federal
Rules of Criminal Procedure, including the addition of Rule 11(h), accom-
panied by the report of the Judicial Conference containing the Advisory
Committee Notes to the amendment).

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At best, as we have said before, the canon that expressing
one item of a commonly associated group or series excludes
another left unmentioned is only a guide, whose fallibility
can be shown by contrary indications that adopting a particu-
lar rule or statute was probably not meant to signal any ex-
clusion of its common relatives. See Pauley v. BethEnergy
Mines, Inc., 501 U. S. 680, 703 (1991); cf. Burns v. United
States, 501 U. S. 129, 136 (1991) (“An inference drawn from
congressional silence certainly cannot be credited when it is
contrary to all other textual and contextual evidence of con-
gressional intent”). Here, the plausibility of an expression-
exclusion reading of Rule 11(h) is subject to one strike with-
out even considering what such a reading would mean in
practice, or examining the circumstances of adopting 11(h).
For here the harmless- and plain-error alternatives are asso-
ciated together in the formally enacted Rule 52, having ap-
parently equal dignity with Rule 11(h), and applying by its
terms to error in the application of any other Rule of crimi-
nal procedure. To hold that the terms of Rule 11(h) imply
that the latter half of Rule 52 has no application to Rule 11
errors would consequently amount to finding a partial repeal
of Rule 52(b) by implication, a result sufficiently disfavored,
Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1017 (1984), as
to require strong support.
Support, however, is not readily found. In the first place,
even if we indulge Vonn with the assumption that Congress
meant to imply something by failing to pair a plain-error
provision with the harmless-error statement in Rule 11(h),
just what it would have meant is subject to argument. Vonn
thinks the implication is that defendants who let Rule 11
error pass without objection are relieved of the burden on
silent defendants generally under the plain-error rule, to
show the error plain, prejudicial, and disreputable to the ju-
dicial system. But, of course, this is not the only “implica-
tion” consistent with Congress’s choice to say nothing about
Rule 11 plain error. It would be equally possible, as a mat-

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ter of logic, to argue that if Rule 52(b) were implicitly made
inapplicable to Rule 11 errors, a defendant who failed to ob-
ject to Rule 11 errors would have no right of review on direct
appeal whatever. A defendant’s right to review of error he
let pass in silence depends upon the plain-error rule; no
plain-error rule, no direct review. Vonn has, then, merely
selected one possible interpretation of the supposedly inten-
tional omission of a Rule 52(b) counterpart, even though logic
would equally allow another one, not to Vonn’s liking.
B
Recognition of the equivocal character of any claimed im-
plication of speaking solely in terms of harmless error forces
Vonn to look beyond the text in hope of finding confirmation
for his reading as opposed to the one less hospitable to silent
defendants. And this effort leads him to claim support in
McCarthy v. United States, 394 U. S. 459 (1969), and the de-
velopments in the wake of that case culminating in the enact-
ment of Rule 11(h). This approach, at least, gets us on the
right track, for the one clearly expressed objective of Rule
11(h) was to end the practice, then commonly followed, of
reversing automatically for any Rule 11 error, and that
practice stemmed from an expansive reading of McCarthy.
What that case did, and did not, hold is therefore significant.
When McCarthy was decided, Rule 11 was relatively prim-
itive, requiring without much detail that the trial court per-
sonally address a defendant proposing to plead guilty and
establish on the record that he was acting voluntarily, with
an understanding of the charge and upon a factual basis sup-
porting conviction. Id., at 462.7 When McCarthy stood be-
7 Prior to its amendment in 1975, Rule 11 provided, in relevant part:
“The court may refuse to accept a plea of guilty, and shall not accept
such plea or a plea of nolo contendere without first addressing the defend-
ant personally and determining that the plea is made voluntarily with
understanding of the nature of the charge and the consequences of the
plea. . . . The court shall not enter a judgment upon a plea of guilty unless
it is satisfied that there is a factual basis for the plea.”

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fore the District Court to plead guilty to tax evasion, how-
ever, the judge’s colloquy with him went no further than
McCarthy’s understanding of his right to a jury trial, the
particular sentencing possibilities, and the absence of any
threats or promises. There was no discussion of the ele-
ments of the crime charged, or the facts that might support
it. Indeed, despite the allegation that McCarthy had acted
“willfully and knowingly,” his lawyer consistently argued at
the sentencing hearing that his client had merely been ne-
glectful, ibid. Although defense counsel raised no objection
to the trial court’s deficient practice under Rule 11, this
Court reversed the conviction on direct review. The Court
rested the result solely on the trial judge’s obvious failure to
conform to the Rule, id., at 464, and emphasized that the
Rule’s procedural safeguards served important constitu-
tional interests in guarding against inadvertent and ignorant
waivers of constitutional rights, id., at 465. Although the
Government asked to have the case remanded for further
evidentiary hearing and an opportunity to show that McCar-
thy’s plea had been made knowingly and voluntarily, the
Court said no and ordered the plea and resulting conviction
vacated.
Vonn does not, of course, claim that McCarthy held that a
silent defendant had no plain-error burden, but he says that
this must have been the Court’s understanding, or it would
have taken McCarthy’s failure to object to the trial judge’s
Rule 11 failings, combined with his failure to meet the re-
quirements of the plain-error rule, as a bar to relief. This
reasoning is unsound, however, for two reasons, the first
being that not a word was said in McCarthy about the plain-
error rule, or for that matter about harmless error. The
opinion said nothing about Rule 52 or either of the rules by
name. The parties’ briefs said nothing. The only serious
issue was raised by the Government’s request to remand the
case for a new evidentiary hearing on McCarthy’s state of
mind when he entered the plea, and not even this had any-

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68 UNITED STATES v. VONN
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thing to do with either the harmless- or plain-error rule.
Under the former, the Government’s opportunity and burden
is to show the error harmless based on the entire record
before the reviewing court, see United States v. Hasting, 461
U. S. 499, 509, n. 7 (1983); under the plain-error rule the Gov-
ernment likewise points to parts of the record to counter any
ostensible showing of prejudice the defendant may make, see
United States v. Young, 470 U. S. 1, 16 (1985). Under either
rule, the Government’s opportunity is to persuade with what
it has, not to initiate further litigation. Yet further litiga-
tion is what the Government wanted in McCarthy. It ar-
gued that if the Court did not think that the existing record
demonstrated that McCarthy’s plea had been knowing and
voluntary, the Court should remand for a further hearing
with new evidence affirmatively making this showing, 394
U. S., at 469. When the Court said no, it made no reference
to harmless or plain error, but cited the object of Rule 11
to eliminate time-wasting litigation after the fact about how
knowing and voluntary a defendant really had been at an
earlier hearing. Id., at 469–470. And it expressed intense
skepticism that any defendant would succeed, no matter how
little he understood, once the evidence at a subsequent hear-
ing showed that he had desired to plead. Id., at 469. In
sum, McCarthy had nothing to do with the choice between
harmless-error and plain-error review; the issue was simply
whether the Government could extend the litigation for addi-
tional evidence.
Vonn’s attempt to read the McCarthy Court’s mind is
therefore purely speculative. What is worse, however, his
speculation is less plausible than the view that the Court
would probably have held that McCarthy satisfied the plain-
error burdens if that had mattered. There was no question
that the trial judge had failed to observe Rule 11, and the
failing was obvious. So was the prejudice to McCarthy.
Having had no explanation from the judge of the knowing
and willful state of mind charged as of the time of the tax

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69 Cite as: 535 U. S. 55 (2002)
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violation, he pleaded guilty and was later sentenced at a
hearing in which his lawyer repeatedly represented that Mc-
Carthy had been guilty of nothing but sloppiness.8 The con-
tradiction between the plea and the denial of the mental
state alleged bespoke the prejudice of an unknowing plea, to
which the judge’s indifference was an affront to the integrity
of the judicial system. While we need not religitate or re-
write McCarthy at this point, it is safe to say that the actual
opinion is not even speculative authority that the plain-error
rule stops short of Rule 11 errors.
Nor is there any persuasive reason to think that when the
Advisory Committee and Congress later came to consider
Rule 11(h) they accepted the view Vonn erroneously attrib-
utes to this Court in McCarthy. The attention of the Advi-
sory Committee to the problem of Rule 11 error was not
drawn by McCarthy so much as by events that subsequently
invested that case with a significance beyond its holding. In
1975, a few years after McCarthy came down, Congress
transformed Rule 11 into a detailed formula for testing a
defendant’s readiness to proceed to enter a plea of guilty,
obliging the judge to give specified advice about the charge,
the applicable criminal statute, and even collateral law. The
Court in McCarthy had, for example, been content to say
that a defendant would need to know of the right against
self-incrimination and rights to jury trial and confrontation
before he could knowingly plead. But the 1975 revision of
Rule 11 required instruction on such further matters as
cross-examination in addition to confrontation, see Fed. Rule
Crim. Proc. 11(c)(3); the right to counsel “at . . . trial” even
when the defendant stood in court with a lawyer next to him
(as in this case), see ibid.; and even the consequences of any
8 Nor did McCarthy claim that the guilty plea should be accepted on the
Alford theory that a defendant may plead guilty while protesting inno-
cence when he makes a conscious choice to plead simply to avoid the ex-
penses or vicissitudes of trial. North Carolina v. Alford, 400 U. S. 25
(1970).

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70 UNITED STATES v. VONN
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perjury the defendant might commit at the plea hearing, see
Rule 11(c)(5).
Although the details newly required in Rule 11 colloquies
did not necessarily equate to the importance of the overarch-
ing issues of knowledge and voluntariness already addressed
in the earlier versions of the Rule, some Courts of Appeals
felt bound to treat all Rule 11 lapses as equal and to read
McCarthy as mandating automatic reversal for any one of
them. See Advisory Committee’s Notes on 1983 Amend-
ments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 1568
(hereinafter Advisory Committee’s Notes) (citing United
States v. Boone, 543 F. 2d 1090 (CA4 1976); United States v.
Journet, 544 F. 2d 633 (CA2 1976)). This approach imposed
a cost on Rule 11 mistakes that McCarthy neither required
nor justified, and by 1983 the practice of automatic reversal
for error threatening little prejudice to a defendant or dis-
grace to the legal system prompted further revision of Rule
11. Advisory Committee’s Notes 1568.
The Advisory Committee reasoned that, although a rule of
per se reversal might have been justified at the time McCar-
thy was decided, “[a]n inevitable consequence of the 1975
amendments was some increase in the risk that a trial judge,
in a particular case, might inadvertently deviate to some de-
gree from the procedure which a very literal reading of Rule
11 would appear to require.” Advisory Committee’s Notes
1568. After the amendments, “it became more apparent
than ever that Rule 11 should not be given such a crabbed
interpretation that ceremony was exalted over substance.”
Ibid.
Vonn thinks the Advisory Committee’s report also includes
a signal that it meant to dispense with a silent defendant’s
plain-error burdens. He stresses that the report cited
Courts of Appeals cases of “crabbed interpretation” that had
given relief to nonobjecting defendants. By proposing only
a harmless-error amendment to correct the mistakes made

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in these cases, he says, the Committee must have thought
that the Government’s only answer to nonobjecting defend-
ants should be to prove error harmless, if it could. But this
argument ignores the fact that these cases were not merely
instances of automatic reversal, but were cited along with
harmless-error cases as illustrations of the “considerable dis-
agreement” that arose after McCarthy among Courts of Ap-
peals in treating errors of trivial significance. See Advisory
Committee’s Notes 1568. Given the Advisory Committee’s
apparent focus on the disarray among courts, the citations
Vonn points to cannot reliably be read to suggest that plain-
error review should never apply to Rule 11 errors, when the
Advisory Committee Notes never made such an assertion
and the reported cases cited by the Committee never men-
tioned the plain-error/harmless-error distinction.
We think, rather, that the significance of Congress’s choice
to adopt a harmless-error rule is best understood by taking
the Advisory Committee at its word. “It must . . . be em-
phasized that a harmless error provision has been added to
Rule 11 because some courts have read McCarthy as mean-
ing that the general harmless error provision in Rule 52(a)
cannot be utilized with respect to Rule 11 proceedings.”
Id., at 1569. The Committee said it was responding sim-
ply to a claim that the harmless-error rule did not apply.
Having pinpointed that problem, it gave a pinpoint answer.
If instead the Committee had taken note of claims that
“Rule 52” did not apply, or that “neither harmless-error nor
plain-error rule applied,” one could infer that enacting a
harmless-error rule and nothing more was meant to rule out
anything but harmless-error treatment. But by providing
for harmless-error review in response to nothing more than
the claim that harmless-error review would itself be errone-
ous, the Advisory Committee implied nothing more than it
said, and it certainly did not implicitly repeal Rule 52(b) so
far as it might cover a Rule 11 case.

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72 UNITED STATES v. VONN
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C
A further reason to doubt that Congress could have in-
tended Vonn’s position is the tendency it would have to
undercut the object of Rule 32(e), which governs withdraw-
ing a plea of guilty by creating an incentive to file with-
drawal motions before sentence, not afterward. A trial
judge is authorized to grant such a presentence motion if
the defendant carries the burden of showing a “fair and just
reason” for withdrawal, and a defendant who fails to move
for withdrawal before sentencing has no further recourse ex-
cept “direct appeal or . . . motion under 28 U. S. C. 2255,”
subject to the rules covering those later stages. Fed. Rule
Crim. Proc. 32(e). Whatever the “fair and just” standard
may require on presentence motions,9 the Advisory Commit-
tee Notes confirm the textual suggestion that the Rule
creates a “ ‘near-presumption’ ” against granting motions
filed after sentencing, Advisory Committee’s Notes on 1983
Amendment to Fed. Rule Crim. Proc. 32, 18 U. S. C. App.,
p. 1621 (quoting United States v. Barker, 514 F. 2d 208, 219
(CADC 1975)). This is only good sense; in acting as an
incentive to think through a guilty plea before sentence is
imposed, the Rule tends to separate meritorious second
thoughts (say, a defendant’s doubts about his understanding)
and mere sour grapes over a sentence once pronounced.
The “near-presumption” concentrates plea litigation in the
trial courts, where genuine mistakes can be corrected easily,
and promotes the finality required in a system as heavily
dependent on guilty pleas as ours.
9 The Courts of Appeals have held that a Rule 11 violation that is harm-
less under Rule 11(h) does not rise to the level of a “fair and just reason”
for withdrawing a guilty plea. See United States v. Driver, 242 F. 3d 767,
769 (CA7 2001) (“Even an established violation of Rule 11 can be harmless
error . . . and thus not a ‘fair and just reason’ to return to Square One”);
United States v. Siegel, 102 F. 3d 477, 481 (CA11 1996); United States v.
Martinez-Molina, 64 F. 3d 719, 734 (CA1 1995).

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But the incentive to think and act early when Rule 11 is
at stake would prove less substantial if Vonn’s position were
law; a defendant could choose to say nothing about a judge’s
plain lapse under Rule 11 until the moment of taking a direct
appeal, at which time the burden would always fall on the
Government to prove harmlessness. A defendant could
simply relax and wait to see if the sentence later struck him
as satisfactory; if not, his Rule 11 silence would have left
him with clear but uncorrected Rule 11 error to place on
the Government’s shoulders. This result might, perhaps, be
sufferable if there were merit in Vonn’s objection that apply-
ing the plain-error standard to a defendant who stays mum
on Rule 11 error invites the judge to relax. The plain-error
rule, he says, would discount the judge’s duty to advise the
defendant by obliging the defendant to advise the judge.
But, rhetoric aside, that is always the point of the plain-error
rule: the value of finality requires defense counsel to be on
his toes, not just the judge, and the defendant who just sits
there when a mistake can be fixed cannot just sit there when
he speaks up later on.10
10 Contrary to Justice Stevens’s suggestion, post, at 78–80 (opinion
concurring in part and dissenting in part), there is nothing “perverse”
about conditioning the Government’s harmless-error burden on an objec-
tion when the judge commits Rule 11 error. A defendant’s right to coun-
sel on entering a guilty plea is expressly recognized in Rule 11(c)(2), and
counsel is obliged to understand the Rule 11 requirements. It is fair to
burden the defendant with his lawyer’s obligation to do what is reasonably
necessary to render the guilty plea effectual and to refrain from trifling
with the court. It therefore makes sense to require counsel to call a Rule
11 failing to the court’s attention. It is perfectly true that an uncounseled
defendant may not, in fact, know enough to spot a Rule 11 error, but when
a defendant chooses self-representation after a warning from the court of
the perils this entails, see Faretta v. California, 422 U. S. 806, 835 (1975),
Rule 11 silence is one of the perils he assumes. Any other approach is at
odds with Congress’s object in adopting Rule 11, recognized in McCarthy
v. United States, 394 U. S. 459, 465 (1969), to combat defendants’ “often
frivolous” attacks on the validity of their guilty pleas, by aiding the dis-
trict judge in determining whether the defendant’s plea was knowing and

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In sum, there are good reasons to doubt that expressing a
harmless-error standard in Rule 11(h) was meant to carry
any implication beyond its terms. At the very least, there
is no reason persuasive enough to think 11(h) was intended
to repeal Rule 52(b) for every Rule 11 case.
III
The final question goes to the scope of an appellate court’s
enquiry into the effect of a Rule 11 violation, whatever the
review, plain error or harmless. The Court of Appeals con-
fined itself to considering the record of “the plea proceed-
ing,” 224 F. 3d, at 1156, applying Circuit precedent recogniz-
ing that the best evidence of a defendant’s understanding
when pleading guilty is the colloquy closest to the moment
he enters the plea. While there is no doubt that this posi-
tion serves the object of Rule 11 to eliminate wasteful post
hoc probes into a defendant’s psyche, McCarthy, 394 U. S., at
470, the Court of Appeals was more zealous than the policy
behind the Rule demands. The Advisory Committee in-
tended the effect of error to be assessed on an existing rec-
ord, no question, but it did not mean to limit that record
strictly to the plea proceedings: the enquiry “ ‘must be re-
solved solely on the basis of the Rule 11 transcript’ and the
other portions (e. g., sentencing hearing) of the limited record
made in such cases.” Advisory Committee’s Notes 1569
(quoting United States v. Coronado, 554 F. 2d 166, 170, n. 5
(CA5 1977)).
True, language in McCarthy ostensibly supports the posi-
tion taken by the Court of Appeals (which did not, however,
rest on it); we admonished that “[t]here is no adequate substi-
voluntary and creating a record at the time of the plea supporting that
decision.
Vonn’s final retort that application of the plain-error rule would tend to
leave some “unconstitutional pleas” uncorrected obviates the question in
this case, which is who bears the burden of proving that Rule 11 error did
or did not prejudice the defendant: the Government or the defendant?

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tute for demonstrating in the record at the time the plea is
entered the defendant’s understanding of the nature of the
charge against him,” 394 U. S., at 470 (emphasis in original).
But McCarthy was decided before the enactment of Rule
11(h), which came with the commentary just quoted, and Mc-
Carthy in any event was not a case with a record of anything
on point, even outside the Rule 11 hearing. The Govern-
ment responded to the laconic plea colloquy not by referring
to anything illuminating in the record; instead it brought up
the indictment, tried to draw speculative inferences from
conversations McCarthy probably had with his lawyer, and
sought to present new evidence. The only serious alterna-
tive to “the record at the time the plea [was] entered” was an
evidentiary hearing for further factfinding by the trial court.
Here, however, there is a third source of information, out-
side the four corners of the transcript of the plea hearing
and Rule 11 colloquy, but still part of the record. Tran-
scripts brought to our attention show that Vonn was advised
of his right to trial counsel during his initial appearance be-
fore the Magistrate Judge and twice at his first arraignment.
The record shows that four times either Vonn or his counsel
affirmed that Vonn had heard or read a statement of his
rights and understood what they were. Because there are
circumstances in which defendants may be presumed to re-
call information provided to them prior to the plea proceed-
ing, cf. Bousley v. United States, 523 U. S. 614, 618 (1998) (a
defendant with a copy of his indictment before pleading
guilty is presumed to know the nature of the charge against
him), the record of Vonn’s initial appearance and arraignment
is relevant in fact, and well within the Advisory Committee’s
understanding of “other portions . . . of the limited record”
that should be open to consideration. It may be consid-
ered here.
The transcripts covering Vonn’s first appearance and ar-
raignment were not, however, presented to the Court of Ap-
peals. Probably owing to that court’s self-confinement to a

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76 UNITED STATES v. VONN
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narrower record, it made no express ruling on the part of
the Government’s rehearing motion requesting to make the
first-appearance and arraignment transcripts part of the ap-
pellate record. For that reason, even with the transcripts
now in the parties’ joint appendix filed with us, we should
not resolve their bearing on Vonn’s claim before the Court
of Appeals has done so. Adarand Constructors, Inc. v. Mi-
neta, 534 U. S. 103 (2001).
We therefore vacate the Court of Appeals’s judgment and
remand the case for further proceedings consistent with
this opinion.
It is so ordered.
Justice Stevens, concurring in part and dissenting in
part.
For the reasons stated in Part III of the Court’s opinion,
I agree that the effect of a violation of Rule 11 of the Federal
Rules of Criminal Procedure should be evaluated on the
basis of the entire record, rather than just the record of the
plea colloquy, and that a remand is therefore required. Con-
trary to the Court’s analysis in Part II of its opinion, how-
ever, I am firmly convinced that the history, the text of Rule
11, and the special office of the Rule all support the conclu-
sion, “urged by the Government” in McCarthy v. United
States, 394 U. S. 459, 469 (1969), that the burden of demon-
strating that a violation of that Rule is harmless is “place[d]
upon the Government,” ibid.
In McCarthy, after deciding that the trial judge had not
complied with Rule 11, the Court had to “determine the ef-
fect of that noncompliance, an issue that ha[d] engendered a
sharp difference . . . among the courts of appeals.” Id., at
468. The two alternatives considered by those courts were
the automatic reversal rule that we ultimately unanimously
endorsed in McCarthy and the harmless-error rule urged by

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the Government.1 No one even argued that the defendant
should have the burden of proving prejudice.2 The Court’s
conclusion that “prejudice inheres in a failure to comply with
Rule 11” was uncontroversial.3 Id., at 471.
During the years preceding the 1983 amendment to Rule
11, it was generally understood that noncompliance with
Rule 11 in direct appeal cases required automatic reversal.
See Advisory Committee’s Notes on 1983 Amendments to
Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 1568 (herein-
after Advisory Committee’s Notes) (citing United States v.
Boone, 543 F. 2d 1090 (CA4 1976); United States v. Journet,
544 F. 2d 633 (CA2 1976)). Thus, prior to the addition of
Rule 11(h), neither plain-error 4 nor harmless-error review
applied to Rule 11 violations. Rejecting McCarthy’s “ex-
1 McCarthy was decided 15 years after the adoption of Rule 52, and yet
neither the parties nor the Court discussed the application of that Rule
despite the fact that the defendant had failed to object to the Rule 11
error.
2 Nor did the Government make such an argument in the Court of Ap-
peals in this case. That should be a sufficient reason for refusing to con-
sider the argument here, see United States v. Williams, 504 U. S. 36,
55–61 (1992) (Stevens, J., dissenting), but, as in Williams, the Court finds
it appropriate to accord “a special privilege for the Federal Government,”
id., at 59.
3 “We thus conclude that prejudice inheres in a failure to comply with
Rule 11, for noncompliance deprives the defendant of the Rule’s procedural
safeguards that are designed to facilitate a more accurate determination
of the voluntariness of his plea.” McCarthy, 394 U. S., at 471–472.
Not a word in the proceedings that led to the amendment rejecting the
automatic reversal remedy questioned the validity of the proposition
that every violation of the Rule is presumptively prejudicial. The amend-
ment merely gives the Government the opportunity to overcome that
presumption.
4 Rule 52(b) states: “Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the
court.” When a court reviews for plain error, the burden is on the de-
fendant to show that the error affected his substantial rights. United
States v. Olano, 507 U. S. 725, 734–735 (1993).

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treme sanction of automatic reversal” for technical viola-
tions, Congress added subsection 11(h), which closely tracks
the harmless-error language of Rule 52(a).5 Advisory Com-
mittee’s Notes 1569. As the Advisory Committee’s Notes
make clear, “Subdivision (h) makes no change in the respon-
sibilities of the judge at Rule 11 proceedings, but instead
merely rejects the extreme sanction of automatic reversal.”
Ibid. (emphasis deleted and added). The plain text thus em-
bodies Congress’ choice of incorporating the standard found
in Rule 52(a), while omitting that of Rule 52(b).6 Because
the pre-existing background of Rule 11 was that Rule 52(b)
did not apply, and because the amendment adding Rule 52(a)
via subsection (h) did not also add Rule 52(b), the straight-
forward conclusion is that plain-error review does not apply
to Rule 11 errors.
Congress’ decision to apply only Rule 52(a)’s harmless-
error standard to Rule 11 errors is tailored to the purpose
of the Rule. The very premise of the required Rule 11 collo-
quy is that, even if counsel is present, the defendant may not
adequately understand the rights set forth in the Rule unless
the judge explains them. It is thus perverse to place the
burden on the uninformed defendant to object to deviations
from Rule 11 or to establish prejudice arising out of the
judge’s failure to mention a right that he does not know he
5 Rule 52(a) states: “Harmless error. Any error, defect, irregularity or
variance which does not affect substantial rights shall be disregarded.”
Rule 11(h) states: “Harmless error. Any variance from the procedures
required by this rule which does not affect substantial rights shall be
disregarded.”
6 The Court incorrectly asserts that this is an argument for repeal by
implication of Rule 52(b). Ante, at 65 (“To hold that the terms of Rule
11(h) imply that the latter half of Rule 52 has no application to Rule 11
errors would consequently amount to finding a partial repeal of Rule 52(b)
by implication, a result sufficiently disfavored”). This ignores the fact
that prior to the enactment of Rule 11(h), courts applied neither Rule 52(a)
nor (b) to Rule 11 violations.

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has.7 Under the Court’s approach, the Government bears
the burden of establishing no harm only when the defendant
objects to the district court’s failure to inform him. In other
words, the Government must show prejudice only when the
defendant asks the judge to advise him of a right of which
the Rule 11 colloquy assumes he is unaware. To see the
implausibility of this, imagine what such an objection would
sound like: “Your Honor, I object to your failure to inform
me of my right to assistance of counsel if I proceed to trial.”
Despite this implausible scenario, and to support the result
that it reaches, the Court’s analysis relies upon an image of
a cunning defendant, who is fully knowledgeable of his
rights, and who games the system by sitting silently as the
district court, apparently less knowledgeable than the de-
fendant, slips up in following the dictates of Rule 11. See,
e. g., ante, at 63 (“[A] defendant loses nothing by failing to
7 The Court states that this is like any other application of the plain-
error rule as it is applied to all trial errors. Ante, at 73 (“The plain-error
rule, [Vonn] says, would discount the judge’s duty to advise the defendant
by obliging the defendant to advise the judge. But, rhetoric aside, that
is always the point of the plain-error rule . . .”). Unlike most rules that
apply to a trial, however, the special purpose of the Rule 11 colloquy is
to provide information to a defendant prior to accepting his plea. Given
this purpose, it is inconceivable that Congress intended the same rules
for review of noncompliance to apply. A parallel example from the
self-representation context illustrates this point. Pursuant to Faretta v.
California, 422 U. S. 806 (1975), a defendant who wishes to represent him-
self must “be made aware of the dangers and disadvantages of self-
representation,” id., at 835. Assume a defendant states that he wishes to
proceed pro se, and the trial judge makes no attempt to warn the defend-
ant of the dangers and disadvantages of self-representation. If the de-
fendant makes no objection to the trial court’s failure to warn, surely we
would not impose a plain-error review standard upon this nonobjecting
defendant. This is so because the assumption of Faretta’s warning re-
quirement is that the defendant is unaware of the dangers. It is illogical
in this context, as in the Rule 11 context, to require the presumptively
unknowing defendant to object to the court’s failure to adequately inform.
Congress’ decision to apply the harmless-error standard to all Rule 11
errors surely reflects this logic.

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object to obvious Rule 11 error when it occurs”); ante, at 73
(“[A] defendant could choose to say nothing about a judge’s
plain lapse under Rule 11 until the moment of taking a direct
appeal, at which time the burden would always fall on the
Government to prove harmlessness. A defendant could
simply relax and wait to see if the sentence later struck him
as satisfactory”). My analysis is based on a fundamentally
different understanding of the considerations that motivated
the Rule 11 colloquy requirements in the first place.
Namely, in light of the gravity of a plea, the court will as-
sume no knowledge on the part of the defendant, even if
represented by counsel, and the court must inform him of a
base level of information before accepting his plea.8
The express inclusion in Rule 11 of a counterpart to Rule
52(a) and the omission of a counterpart to Rule 52(b) is best
understood as a reflection of the fact that it is only fair to
place the burden of proving the impact of the judge’s error
on the party who is aware of it rather than the party who
is unaware of it. This burden allocation gives incentive to
the judge to follow meticulously the Rule 11 requirements
and to the prosecutor to correct Rule 11 errors at the time
of the colloquy. The Court’s approach undermines those
incentives.
I would remand to the Court of Appeals to determine
whether, taking account of the entire record, the Govern-
ment has met its burden of establishing that the District
Court’s failure to inform the respondent of his right to coun-
sel at trial was harmless.
8 See Kercheval v. United States, 274 U. S. 220, 223 (1927) (“A plea of
guilty differs in purpose and effect from a mere admission or an extra-
judicial confession; it is itself a conviction. . . . Out of just consideration
for persons accused of crime, courts are careful that a plea of guilty shall
not be accepted unless made voluntarily after proper advice and with full
understanding of the consequences”).