United States v. Rodriguez-Adorno

• Court: Court of Appeals for the First Circuit
• Decided: December 7, 2011
• Docket: 11-1050
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 10-2323

UNITED STATES OF AMERICA,

Appellee,

v.

SAMUEL ORTIZ-GARCÍA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lynch, Chief Judge, Torruella and Stahl, Circuit Judges.

Rafael F. Castro Lang, by Appointment of the Court, for appellant. Vernon B. Miles, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez- Sosa, Assistant United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, were on brief for appellee.

December 7, 2011 STAHL, Circuit Judge. Defendant-appellant Samuel Ortiz-

García (Ortiz) executed a plea agreement and entered a guilty plea

without ever having been informed that the maximum penalty for the

crime to which he was pleading guilty was life imprisonment. Ortiz

ultimately received a sentence of 360 months, though his plea

agreement recommended 120 months. Ortiz argues that the waiver of

appeal provision in his plea agreement is unenforceable, that the

district court violated Rule 11 by failing to inform him of the

maximum penalty at his change-of-plea hearing, and that the court

violated Rule 32 by failing to inquire at the sentencing hearing

whether Ortiz had reviewed the pre-sentence investigation report

with his attorney. Because we find that the waiver is

unenforceable and that the Rule 11 violation constituted plain

error, we vacate and remand for a new change-of-plea hearing.

I. Facts & Background

We recite the facts only as they are relevant to this

appeal, drawing from the plea colloquy, the unchallenged portions

of the pre-sentence investigation report (PSR), and the sentencing

hearing transcript. United States v. Mercedes Mercedes, 428 F.3d

355, 357 (1st Cir. 2005). On May 12, 2007, Ortiz and two other

individuals attempted to steal the car of Gilberto Santiago-

Quiñones (Santiago). Santiago and his passenger confronted the

men, and an altercation ensued, in which Ortiz does not appear to

have been involved. After the fight was over, Santiago and his

-2- passenger got back into the car to try to leave, but Ortiz's co-

defendant, Agustín Rodríguez-Adorno (Rodríguez), blocked their way.

An unidentified individual then said, "He's tough. Shoot him."

Ortiz approached the driver's side of the car and fired multiple

shots into the car, killing Santiago.

A grand jury returned a four-count indictment, charging

Ortiz, Rodríguez, and another individual with: (1) conspiring to

commit a carjacking with intent to cause death or serious bodily

harm, in violation of 18 U.S.C. §§ 371, 2119 (Count One);

(2) aiding and abetting in a carjacking that resulted in a death,

in violation of 18 U.S.C. § 2119(3) (Count Two); (3) aiding and

abetting in the use, carriage, and discharge of a firearm in

furtherance of, during, and in relation to the commission of a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)

(Count Three); and (4) aiding and abetting one another in causing

the death of another person through the use of a firearm, in

violation of 18 U.S.C. § 924(j) (Count Four).1

On June 9, 2010, Ortiz entered into a plea agreement with

the government, pursuant to Federal Rule of Criminal Procedure

11(c)(1)(A) and (B). Under the terms of that agreement, Ortiz

agreed to plead guilty to Count Three of the indictment:

1 The indictment charges, and the government's brief lists, violations of "18 U.S.C. § 2119(3) and 2," "18 U.S.C. § 924(c)(1)(A)(iii) and 2," and 18 U.S.C. § 924(j) and 2." Because it is unclear what statutory provision "and 2" refers to in each instance, we have omitted that language here.

-3- discharging a deadly weapon during a crime of violence, in

violation of 18 U.S.C. § 924(c)(1)(A)(iii). In exchange, the

government recommended a sentence of 120 months. As part of the

plea agreement, Ortiz accepted the district court's "jurisdiction

and authority to impose any sentence within the statutory maximum

set forth for the offense." If the district court chose to impose

a sentence "up to the maximum established by statute," Ortiz could

not "for that reason alone, withdraw a guilty plea," and would

remain bound to fulfill all of the obligations of the plea

agreement. Nowhere in the agreement, however, did the government

include the maximum penalty under 18 U.S.C. § 924(c)(1)(A)(iii),

which is life imprisonment.2 The "statutory penalties" section of

the agreement simply stated that the crime was punishable "by

imprisonment of not less than ten (10) years," a fine not to exceed

$250,000.00, or both, and a term of supervised release of no more

than three years.

The agreement also contained a waiver of appeal section,

which read as follows: "The defendant hereby agrees that if this

Honorable Court accepts this agreement and sentences him according

to its terms and conditions, defendant waives and surrenders his

right to appeal the judgment and sentence in this case."

2 As we explain in more detail below, a complicating factor in this case is that the relevant statutory text does not include a maximum penalty; the statute only specifies a mandatory minimum of "not less than 10 years." 18 U.S.C. § 924(c)(1)(A)(iii). The maximum penalty of life imprisonment is thus derived from case law.

-4- At Ortiz's change-of-plea hearing on June 10, 2010, the

district court informed Ortiz that the minimum statutory penalty

for the offense charged in Count Three was "imprisonment of not

less than ten years if the firearm is discharged," but the court

did not mention the maximum penalty. Ortiz did not object to this

omission at the hearing. The district court did confirm Ortiz's

understanding that the court could impose a sentence more or less

severe than the one recommended in the agreement and that the

court's sentencing calculation would depend in part on its review

of the PSR. The court also informed Ortiz that, if the court

accepted the plea agreement and sentenced Ortiz according to its

terms, Ortiz would waive and surrender his right to appeal. A

sentencing hearing was scheduled for September 16, 2010.

The government first referenced the maximum penalty of

life imprisonment under 18 U.S.C. § 924(c)(1)(A)(iii) in an initial

PSR filed on September 3, 2010 and an amended PSR filed on

September 10, 2010. It is unclear, however, whether the

government's belated attempt to notify Ortiz that he might receive

a life sentence was successful. Because Ortiz did not receive the

PSR at least 35 days before his sentencing hearing, as required by

Federal Rule of Criminal Procedure 32(e)(2), Ortiz's counsel filed

a motion to continue the hearing. In that motion, Ortiz's counsel

stated that he "came to discuss [the PSR and amended PSR] with

[his] client yesterday, September 13, 2010, barely three (3) days

-5- from the sentencing date." Ortiz's counsel further stated that he

would normally advise his client to waive the 35-day notice period

required by Rule 32(e)(2), but due to the nature of the case and

"the need to thoroughly study the reports and further discuss with

[his] client the contents of these," he was requesting a

continuance of the sentencing date. The district court rescheduled

the hearing for October 21, 2010.

Four things happened at the sentencing hearing that are

important here. First, the district court failed to confirm

whether Ortiz had in fact reviewed the PSR with his attorney.

Second, the court informed Ortiz that the maximum sentence under

18 U.S.C. § 924(c)(1)(A)(iii) was life imprisonment. Third, the

court imposed a sentence of 360 months, finding that the sentence

to which the parties had agreed, 120 months, did not "reflect the

seriousness and aggravated nature of the offense." Fourth, after

informing Ortiz that he had waived his "right to appeal substantive

issues regarding the conviction and sentence," the district court

went on to say, "I must tell you, Mr. Ortiz, that because the Court

has not sentenced you according to the terms and conditions of the

Plea Agreement, you do have the right to appeal." Ortiz did not

object to the court's failure to inquire about the PSR, nor did he

ask that his plea be vacated once the court informed him of the

maximum penalty.

-6- Ortiz's co-defendant, Rodríguez, elected to go to trial.

Rodríguez argued that Santiago's death had been the result of a

street fight, not an attempted carjacking. On June 30, 2010, a

jury convicted Rodríguez of Counts One and Two but acquitted him as

to Counts Three and Four. Rodríguez received a sentence of 180

months' imprisonment.

II. Discussion

A. The Waiver of Appeal

We begin by addressing the waiver of appeal that Ortiz

executed as part of his plea agreement, which, if enforceable,

would preclude our consideration of the alleged Rule 11 and Rule 32

violations.

A waiver of appeal is enforceable "if it is valid and the

defendant's claim lies within its scope." United States v.

Padilla-Colón, 578 F.3d 23, 28 (1st Cir. 2009). For a waiver to be

valid, the defendant must have entered into it knowingly and

voluntarily. United States v. Teeter, 257 F.3d 14, 24-25 (1st Cir.

2001). To determine whether a defendant's claim falls within the

scope of an otherwise valid waiver, we examine what the parties

agreed to, interpreting the agreement under basic contract

principles. United States v. Acosta-Roman, 549 F.3d 1, 3 (1st Cir.

2008). We construe any ambiguities in the waiver of appeal

-7- provision in favor of allowing the appeal to proceed. United

States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir. 2010).3

In this case, Ortiz agreed to waive his right to appeal

the district court's judgment and sentence if the court:

(1) accepted the agreement; and (2) sentenced Ortiz according to

the agreement's terms and conditions. Those terms and conditions

included a recommended sentence of 120 months and a provision

confirming that the district court had sound discretion to impose

"any sentence within the statutory maximum set for the offense to

which the defendant pleads guilty." Nowhere in the agreement,

however, did the government specify the maximum penalty, which was

life imprisonment. The agreement merely listed the statutory

minimum of "imprisonment of not less than ten (10) years."

The government argues that Ortiz's waiver of appeal is

enforceable because the district court, at the change-of-plea

hearing, ensured that Ortiz had knowingly and voluntarily entered

into the waiver and then accepted Ortiz's plea of guilty, which the

government equates with having accepted the plea agreement itself.

The government further contends that Ortiz's 360-month sentence

falls within the scope of what Ortiz consented to in the plea

3 Though we need not reach the issue here, even if a defendant entered into an appellate waiver knowingly and voluntarily and his claim lies within the scope of that waiver, we may refuse to enforce the waiver if doing so would result in a miscarriage of justice. Sotirion v. United States, 617 F.3d 27, 33 (1st Cir. 2010).

-8- agreement, which only promised that the government would recommend

a sentence of 120 months.4

To determine whether a defendant entered into a waiver of

appellate rights knowingly and voluntarily, we examine the text of

the plea agreement and the content of the change-of-plea colloquy.

Teeter, 257 F.3d at 24. We first confirm that the written

agreement contains a clear statement elucidating the scope of the

waiver. Id. We have previously upheld waivers of this exact

nature, though we emphasize again today that it would be better

practice, given "the frequency of appeals involving waivers," for

the government to draft waiver provisions that "make specific

reference to any terms and conditions of the plea agreement that

are not intended by the parties to be covered by the waiver."

Acosta-Roman, 549 F.3d at 4 n.3 (emphasis in original).

Given that the text of the waiver provision was clear

enough on its face, we next examine the transcript of the change-

of-plea hearing to ascertain whether the court's interrogation

sufficed "to ensure that the defendant freely and intelligently

4 The government urges us to disregard the district court's statement at the sentencing hearing that Ortiz had a right to appeal because the court had not sentenced him according to the plea agreement's terms and conditions. Because we find that Ortiz's waiver of appellate rights was not knowing and voluntary, we need not address whether the district court in fact sentenced Ortiz according to the plea agreement's terms and conditions, such that Ortiz's claim would fall within the scope of the waiver. See United States v. McCoy, 508 F.3d 74, 77 (1st Cir. 2007) ("Even a knowing and voluntary appeal waiver only precludes appeals that fall within its scope.").

-9- agreed to waive [his] right to appeal." Teeter, 257 F.3d at 24.

This includes an inquiry into whether the district court informed

the defendant of the ramifications of the waiver. See, e.g.,

Acosta-Roman, 549 F.3d at 3. While the district court did question

Ortiz specifically about his understanding of the waiver provision,

the court failed to comply with Rule 11(b)(1)(H)'s mandate that the

court inform the defendant of, and ascertain that the defendant

understands, "any maximum possible penalty."5 The court did

neither. Perhaps this error could have been mitigated if the plea

agreement had included the maximum penalty, or there was other

evidence that the defendant had been informed of and understood the

maximum penalty. But there is no such evidence. Furthermore, any

opportunity the court might have had at the sentencing hearing to

cure the omission and provide Ortiz with time to consider

withdrawing his plea was marred by other mistakes, which we

describe later.

Under the circumstances, we are not convinced that

Ortiz's plea was knowing, and we therefore choose not to enforce

the waiver. We can thus reach the merits of Ortiz's claim.

5 Rule 11(b)(1)(H) refers to the "maximum possible penalty" and not to the "statutory penalty" or "statutory maximum." It therefore does not provide an exception for situations like this one, in which the statute itself does not specify a maximum.

-10- B. The Rule 11 Violation

We review Ortiz's underlying Rule 11 claim for plain

error, because Ortiz failed to object to the error or move to

withdraw his plea in the district court. See United States v.

Vonn, 535 U.S. 55, 59 (2002); United States v. Rivera-Maldonado,

560 F.3d 16, 19 (1st Cir. 2009). In order to establish plain

error, a defendant must show that: (1) an error occurred; (2) the

error was plain; (3) the error affected the defendant's substantial

rights; and (4) the error "seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings." Rivera-

Maldonado, 560 F.3d at 19 (quoting Vonn, 535 U.S. at 62-63)

(alteration in original) (internal quotation marks omitted).

Rule 11 requires that the district court inform the

defendant during the plea colloquy of "any maximum possible

penalty, including imprisonment, fine, and term of supervised

release." Fed. R. Crim. P. 11(b)(1)(H). The parties agree that

the district court failed, at the change-of-plea hearing, to inform

Ortiz of the maximum penalty for discharging a dangerous weapon in

relation to a crime of violence under 18 U.S.C.

§ 924(c)(1)(A)(iii). The parties also agree that the plea

agreement itself failed to specify the maximum.

We begin with a note about the maximum penalty under

18 U.S.C. § 924(c)(1)(A). The statute does not include an express

maximum. Rather, the statute provides escalating minimums, based

-11- on whether the firearm was carried (five years), brandished (seven

years), or discharged (ten years). See id. The maximum penalty

thus derives from caselaw, much of it interpreting the Supreme

Court's suggestion in Harris v. United States, 536 U.S. 545 (2002),

that "[s]ince [18 U.S.C. § 924(c)(1)(A)'s] subsections alter only

the minimum, the judge may impose a sentence well in excess of

seven years, whether or not the defendant brandished the firearm."

Id. at 554; see also id. at 575-76 (Thomas, J., dissenting)

(explicitly referring to the maximum as life imprisonment). Today,

to avoid any uncertainty in this circuit, we join all of our sister

circuits in finding that the maximum penalty under 18 U.S.C.

§ 924(c)(1)(A) is life imprisonment.6

The fact that we had not explicitly spoken regarding the

maximum penalty at the time of Ortiz's change-of-plea hearing did

not, however, excuse the district court of its obligation to inform

Ortiz of the maximum at that hearing. There is no evidence before

us, nor does either party contend, that the district court was

unsure of the maximum penalty. The court informed Ortiz at the

6 See United States v. Stewart, 628 F.3d 246, 258 (6th Cir. 2010); United States v. Shabazz, 564 F.3d 280, 289 (3d Cir. 2009); United States v. Johnson, 507 F.3d 793, 798 (2d Cir. 2007); United States v. Gamboa, 439 F.3d 796, 811 (8th Cir. 2006); United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005); United States v. Avery, 295 F.3d 1158, 1170 (10th Cir. 2002); United States v. Cristobal, 293 F.3d 134, 147 (4th Cir. 2002); United States v. Sandoval, 241 F.3d 549, 551 (7th Cir. 2001); United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000); United States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000).

-12- sentencing hearing that the maximum penalty under 18 U.S.C.

§ 924(c)(1)(A)(iii) was life imprisonment, and the PSR contained

that same information. The district court seems to have simply

forgotten to inform Ortiz of the maximum at the change-of-plea

hearing, as required by Rule 11(b)(1)(H). That error "was both

obvious and plain," and the first two prongs of the plain error

test are thus met. United States v. Borrero-Acevedo, 533 F.3d 11,

17 (1st Cir. 2008).

The third prong of the plain error test, whether the

error affected Ortiz's substantial rights, is a closer question.

Ortiz has the burden of demonstrating "a reasonable probability

that, but for the error, he would not have entered the plea."

United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). That

requires a showing, "informed by the entire record, that the

probability of a different result is 'sufficient to undermine

confidence in the outcome' of the proceeding." Id. at 83 (quoting

Strickland v. Washington, 466 U.S. 668, 694 (1984)).

Ortiz essentially makes two claims as to how the Rule 11

error affected his substantial rights. First, his brief argues

that:

The record reflects that by pleading guilty Ortiz was surrendering an important defense to the carjacking charges since there was evidence that what occurred was a street brawl that had nothing to do with an attempted carjacking which if believed by the jury or established during the course of trial could have led to an acquittal.

-13- The government counters that Ortiz's co-defendant, Rodríguez, used

this very same defense at trial and was found guilty of conspiracy

to commit carjacking and of carjacking (though Rodríguez only

received a sentence of 180 months). It is not for us, however, to

assess whether a defendant would likely have succeeded at trial,

had he elected not to plead guilty in the absence of a Rule 11

error. If the defendant can show a reasonable probability that,

but for the error, he would not have entered the plea, we must

accept that showing without judging its merits. See Dominguez

Benitez, 542 U.S. at 85 ("The point of the question is not to

second-guess a defendant's actual decision; if it is reasonably

probable he would have gone to trial absent the error, it is no

matter that the choice may have been foolish."). Ortiz's second

claim, in the alternative, is that, if he had been properly

informed of the maximum penalty, he might have tried to insist on

a Rule 11(c)(1)(C) agreement, which would have allowed him to

withdraw his plea and proceed to trial if the district court had

rejected the agreement.

The government urges us to find that the error did not

affect Ortiz's substantial rights, because Ortiz was notified of

the maximum penalty both in the PSR and during the sentencing

hearing and did not object or move to withdraw his plea. The

government suggests that Ortiz's inaction belies his claim that,

but for the Rule 11 error, there is a reasonable probability that

-14- he would not have elected to plead guilty. If the record clearly

established that Ortiz had reviewed the PSR with his attorney prior

to the sentencing hearing, that might indeed negate Ortiz's claim

that the Rule 11 error affected his substantial rights, given

Ortiz's failure to object to the PSR. The record before us,

however, reveals no such thing, because the district court failed

to confirm at Ortiz's sentencing hearing that Ortiz had read and

discussed the PSR with his attorney. We are thus met with another

complicating factor, which forces us to take one more detour.

Federal Rule of Criminal Procedure 32(i)(1)(A) requires

a district court, at sentencing, to "verify that the defendant and

the defendant's attorney have read and discussed the presentence

report and any addendum to the report." The government concedes

that the district court failed to make the proper inquiry under

Rule 32(i)(1)(A) but nonetheless argues that there is sufficient

evidence that Ortiz read and discussed the PSR with his attorney to

satisfy the Rule. The government relies on Ortiz's motion to

continue the original sentencing hearing, in which Ortiz's counsel

stated that he "came to discuss" the PSR and amended PSR with his

client on September 13, 2010 and "need[ed] to thoroughly study the

reports and further discuss with [his] client the content of

these." These statements alone do not establish that Ortiz

actually read or discussed the reports with his attorney. Though

we have held in the past that "it is enough that the court

-15- determine that the defendant and counsel have had an opportunity to

read and discuss the report," United States v. Cruz, 981 F.2d 613,

620 (1st Cir. 1992), we were interpreting a prior iteration of the

Rule, which only required the court to "determine that the

defendant and defendant's counsel have had the opportunity to read

and discuss the presentence investigation report," id. at 619 n.9

(emphasis added). The Rule, which was amended in 1994, now

requires the district court to confirm that "the defendant and the

defendant's attorney have read and discussed" the report. Fed. R.

Crim. Pro. 32(i)(1)(A) (emphasis added). Without going any

further, we find that Rule 32(i)(1)(A)'s mandate was not satisfied

here.7

Given the record before us, we must therefore assume that

Ortiz was notified for the first time at his sentencing hearing

that he might receive a life sentence. The fact that Ortiz said

nothing when the district court informed him of the maximum penalty

at the sentencing hearing does not convince us that Ortiz would

have elected to plead guilty regardless of the Rule 11 error.

7 The government relies in part on United States v. Espinola, 242 F. App'x 709 (1st Cir. 2007), vacated on other grounds, 552 U.S. 1240 (2008), an unpublished opinion in which we held that, where "it is clear from the record that [defense] counsel was thoroughly familiar with the PSR, 'we will not assume that defense counsel did not discuss so critically important a document with his client,'" id. at 711 (quoting Cruz, 981 F.2d at 620). Here, it is not "clear from the record" that Ortiz's attorney was "thoroughly familiar with the PSR." Id.

-16- Dominguez Benitez requires Ortiz to demonstrate a reasonable

probability, not an absolute certainty, that he would not have

entered the plea in the absence of the error. 542 U.S. at 83.

As we did in Rivera-Maldonado, we find here that the

error "went to the very purpose of Rule 11, 'which is to advise a

defendant of the actual consequences of his plea so that he can

realistically decide whether to plead guilty.'" 560 F.3d at 20

(quoting United States v. Santo, 225 F.3d 92, 98 (1st Cir. 2000)).

In Rivera-Maldonado, the magistrate judge failed, during the Rule

11 colloquy, to inform the defendant that he could be sentenced to

a lifetime of supervised release. Id. at 18. Relying on erroneous

information in the plea agreement, the court instead told the

defendant that the maximum supervised release term was three years.

Id. The defendant stated that "the information he received from

the plea agreement and the magistrate judge 'played a crucial role

in his decision to plead guilty.'" Id. at 21. Given that, as well

as the "dramatic difference between a three year period of

supervised release and a lifetime of supervised release," we found

that the defendant had shown a reasonable probability that, but for

the error, he would not have entered the plea. Id.8

8 Similarly, in Santo, we found that a Rule 11 error "reasonably could have affected [the defendant's] decision to change his plea to guilty" where the mandatory minimum was ten years but the defendant was informed in the plea agreement and during the plea colloquy that it was five years. 225 F.3d at 101. We decided Santo before the Supreme Court held in Vonn and Dominguez Benitez that a defendant who fails to preserve a Rule 11

-17- Of course, in Rivera-Maldonado, the defendant actually

received the maximum sentence, a lifetime of supervised release,

whereas Ortiz was sentenced below the maximum. Nonetheless, the

thirty-year sentence Ortiz received was well above the ten-year

minimum that had been mentioned in his plea agreement and during

his plea colloquy. The omitted information here, like the

erroneous information in Rivera-Maldonado, "dramatically altered

the sentencing stakes for the defendant," id., and Ortiz has

established a reasonable probability that he would not have entered

into the plea agreement if he had been properly informed of those

stakes. Under these particular circumstances, the Rule 11 error

affected Ortiz's substantial rights.

Finally, as in Rivera-Maldonado, the Rule 11 error

"seriously affect[ed] the fairness, integrity, or public reputation

of judicial proceedings" such that we must vacate Ortiz's plea and

remand for a new change-of-plea hearing. Id. at 22. One of the

core concerns of Rule 11 is that the defendant have "knowledge of

the consequences of his plea." United States v. Hernandez-Wilson,

claim must meet the plain error standard, which requires the defendant to establish a reasonable probability that, but for the error, he would not have pled guilty. See Vonn, 535 U.S. 55; Dominguez Benitez, 542 U.S. 74. Nonetheless, "we recognized in Santo that the defendant faced a 'high hurdle' because he had failed to seek withdrawal of his guilty plea in the lower court. We found the defendant had cleared that high hurdle and had shown a 'substantial defect in the Rule 11 proceeding itself.'" Rivera- Maldonado, 560 F.3d at 20 (quoting Santo, 225 F.3d at 97) (internal citation omitted).

-18- 186 F.3d 1, 6 (1st Cir. 1999). The failure to insist on the

requirements of Rule 11 may well deter future defendants from

entering into guilty pleas and waivers of appeal, which conserve

judicial resources and promote "efficiency and finality in the

adjudication of criminal cases." Teeter, 257 F.3d at 22.

Because we find that the Rule 11 violation constituted

plain error, we need not address whether the Rule 32 violation,

which Ortiz also raises for the first time on appeal, meets the

same fate.

III. Conclusion

While plain error is a "high hurdle," United States v.

Henderson, 320 F.3d 92, 105 (1st Cir. 2003), some defendants do

clear it, and Ortiz has. On remand, Ortiz may of course receive a

sentence far longer than 360 months. Indeed, that risk is very

real, given the underlying conduct at issue here. But Ortiz made

the decision to proceed with this appeal with full knowledge of its

potential consequences.9 The same cannot be said of his original

decision to plead guilty.

Vacated and remanded.

9 At our request, Ortiz's attorney has filed a certified statement confirming that he discussed with his client the possibility that, if we were to grant his appeal and remand for a new change-of-plea hearing, he could receive up to a life sentence on remand. Notwithstanding that risk, Ortiz's attorney has represented to us that Ortiz wishes to proceed with his appeal.

-19-