No. 03-167. Argued April 21, 2004--Decided June 14, 2004

After respondent Dominguez Benitez (hereinafter Dominguez) confessed to selling drugs to an informant, he was indicted on drug possession and conspiracy counts. On the conspiracy count, he faced a 10-year mandatory minimum sentence. His plea agreement with the Government provided that Dominguez would plead guilty to conspiracy and the Government would dismiss the possession charge; that he would receive a safety-valve reduction of two levels, which would allow the court to authorize a sentence below the otherwise mandatory 10-year minimum; that the agreement did not bind the sentencing court; and that he could not withdraw his plea if the court rejected the Government's stipulations or recommendations. He pleaded guilty to the conspiracy charge, but, in the plea colloquy, the court failed to mention (though the written plea agreement did say) that Dominguez could not withdraw his plea if the court did not accept the Government's recommendations. See Fed. Rule Crim. Proc. 11(c)(3)(B). The Probation Office subsequently found that Dominguez had three prior convictions, making him ineligible for the safety valve, so the District Court sentenced him to the mandatory minimum. On appeal, Dominguez argued, for the first time, that the District Court's failure to warn him, as Rule 11(c)(3)(B) instructs, that he could not withdraw his plea if the court did not accept the Government's recommendations required reversal. The Ninth Circuit agreed, citing United States v. Olano, 507 U. S. 725, in applying Federal Rule of Criminal Procedure 52's plain-error standard.

Held: To obtain relief for an unpreserved Rule 11 failing, a defendant must show a reasonable probability that, but for the error, he would not have pleaded guilty. Pp. 5-11.

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