United States of America v. MARK ANTHONY NEAL, AKA Dwight Anthony Alvarez, AKA Anthony Kent Jay, AKA Anthony…

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Matthew F. Kennelly, District Judge for the U.S.**
District Court for Northern Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK ANTHONY NEAL, AKA Dwight
Anthony Alvarez, AKA Anthony Kent
Jay, AKA Anthony Joy, AKA Anthony
Kent Joy, AKA Anthony Mark Neal, AKA
Michael Anthony Pollard,
Defendant - Appellant.
No. 10-50003
D.C. No. 2:09-cr-00752-JFW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted August 2, 2011
Pasadena, California
Before: REINHARDT and BERZON, Circuit Judges, and KENNELLY, District
Judge.**
FILED
MAY 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Mark Anthony Neal appeals his conviction and sentence for unlawful
reentry after deportation in violation of 8 U.S.C. § 1326, arguing that the district
court abused its discretion by rejecting his guilty plea, thereby subjecting him to a
higher sentence. Because the district court’s basis for rejecting Neal’s plea is not
entirely clear from the record and may well have been erroneous, we vacate the
rejection of his plea and remand with directions to hold a new plea hearing.
1. It is probable that the district court rejected Neal’s guilty plea because it
believed that Neal’s refusal to affirmatively admit alienage necessarily fatally
undermined the plea’s factual basis. Such a ground for rejecting the plea would
constitute error. A court “may conclude that a factual basis exists from anything
that appears on the record.” United States v. Mancinas-Flores, 588 F.3d 677, 682
(9th Cir. 2009). Where a defendant is unable or unwilling to admit an element of
the crime, “the court must look to other evidence in the record to determine
whether the plea has a factual basis.” Id. (emphasis added).
2. It is also possible that the district court found that the plea lacked factual
basis on the record before it. Such a conclusion would have been an abuse of
discretion. As Neal specifically noted during the plea colloquy, the government
had a copy of Neal’s Belizean birth certificate, which would have established

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alienage. Indeed, it was that birth certificate that was used at the ensuing trial to
establish alienage.
3. Finally, it is possible that the district court believed it had discretion to
reject an Alford plea—a plea by a defendant who maintains his innocence—despite
there being an adequate factual basis for a guilty plea. North Carolina v. Alford,
400 U.S. 25, 36 (1970).
First, it may well be that Neal’s plea was not an Alford plea. He was not
maintaining his innocence but, instead, saying that he could not attest to his guilt,
for lack of knowledge.
Second, a conflict exists in our case law regarding whether district courts in
fact have such discretion regarding Alford pleas. Compare United States v.
O’Brien, 601 F.2d 1067, 1069 (9th Cir. 1979), with In re Vasquez-Ramirez, 443
F.3d 692, 695 (9th Cir. 2006). We need not resolve this conflict in the present
case, because it is not clear that the district court in fact believed that Neal’s was an
Alford plea, or that it was exercising its discretion to refuse such a plea. See
Mancinas-Flores, 588 F.3d at 682. Moreover, even if the district court rejected the
plea on discretionary grounds because it viewed it as an Alford plea, no valid
reasons for a discretionary rejection appear on the present record. Without such an

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explanation, we cannot review for abuse of discretion. Cf. United States v. Carty,
520 F.3d 984, 992 (9th Cir. 2008).
Accordingly, we VACATE the district court’s rejection of Neal’s plea and
REMAND for a new plea hearing, with instructions that the district court allow
Neal to offer his plea under the terms of the original plea agreement. See
Mancinas-Flores, 588 F.3d at 688. The district court must either accept the plea
pursuant to Rule 11(b)(3) or clearly state proper reasons for rejecting it.

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