United States v. Raul Flores-Villalvaso

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-10039 Plaintiff-Appellee, D.C. No. 4:19-cr-01504-CKJ-DTF-1 v. RAUL FLORES-VILLALVASO, MEMORANDUM* Defendant-Appellant. UNITED STATES OF AMERICA, No. 20-10040 Plaintiff-Appellee, D.C. No. 4:15-cr-00977-CKJ-DTF-1 v. RAUL FLORES-VILLALVASO, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Submitted November 17, 2020** Phoenix, Arizona * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). Before: TALLMAN, BYBEE, and BADE, Circuit Judges. Defendant-Appellant Raul Flores-Villalvaso appeals his conviction by guilty plea and sentence to a term of twenty-four months’ imprisonment for attempted illegal reentry after removal in violation of 8 U.S.C. § 1326, as well as his consecutive twenty-one-month sentence for violation of supervised release conditions arising from a prior conviction for attempted illegal reentry. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Flores-Villalvaso first argues that he was misinformed of the elements of the offense of attempted illegal reentry because the magistrate judge misstated the mens rea element of “specific intent” in 8 U.S.C. § 1326 as “conscious desire” at the plea colloquy, thereby violating Federal Rule of Criminal Procedure 11(b)(1)(G)’s requirement that the defendant understand the nature of the charge to which he pleads. Because Flores-Villalvaso did not object below to the Rule 11 colloquy, his conviction may be reversed for Rule 11 error only if the district court committed plain error. United States v. Pena, 314 F.3d 1152, 1155 (9th Cir. 2003). Attempted illegal reentry in violation of 8 U.S.C. § 1326 is a crime of specific intent “requir[ing] a finding that the defendant consciously desired to reenter the United States without consent.” United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1195, 1198 (9th Cir. 2000) (en banc) (emphasis added). Thus, by reciting the specific intent element in terms of “conscious desire,” the magistrate judge fulfilled 2 her duty to inform Flores-Villalvaso of the nature of his illegal reentry charge in compliance with Rule 11(b)(1)(G). See United States v. Covian-Sandoval, 462 F.3d 1090, 1095 (9th Cir. 2006). Then, immediately after explaining the nature of the charge, the magistrate judge asked Flores-Villalvaso if he understood “what the government would have to prove” and if he understood the charge. Flores- Villalvaso responded to both questions affirmatively and unequivocally with “Yes.” Because the magistrate judge made the “investment of time and effort necessary to set forth the meaning of the charges and to demonstrate on the record that the defendant underst[ood],” United States v. Kamer, 781 F.2d 1380, 1385 (9th Cir. 1986), no plain error occurred. Even assuming the magistrate judge erred, however, the alleged error is not reversible given the absence of any indication that the error affected Flores- Villalvaso’s substantial rights or the ...

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