Submitted June 12, 2013
Appeal from the United States District Court for the District of Arizona D.C. No. 4:12-cr-01407-JGZ-HCE-1 Jennifer G. Zipps, District Judge, Presiding
Francisco León, Tucson, Arizona, for Defendant-Appellant.
John S. Leonardo, United States Attorney, Robert L. Miskell, and Matthew C. Cassell (argued), Assistant United States Attorneys, Tucson, Arizona for Plaintiff-Appellee
Mary M. Schroeder, Kenneth F. Ripple, and Consuelo M. Callahan, Circuit Judges.[*]
The panel affirmed the district court's rejection of a defendant's guilty plea to illegal reentry in violation of 8 U.S.C. § 1326.
The panel determined that the underlying premise for the defendant's insistence that the district court accept his plea – that the maximum sentence under the indictment was two years' incarceration – is wrong. The panel observed that this court's prior opinions have rejected the defendant's assertions that in order to subject him to a possible 20-year maximum sentence under 8 U.S.C. § 1326(b)(2), the indictment must set forth the enhancement and mention the defendant's underlying conviction.
The panel held that the district court properly rejected the defendant's guilty plea under Fed. R. Crim. P. 11, where he had not been informed that he faced a possible sentence of 20 years, and properly offered him the choice of again pleading guilty or proceeding to trial. The panel explained that if jeopardy attached when the magistrate judge accepted the defendant's guilty plea, it did not terminate with the rejection of his plea, as he retained all rights, and his constitutional right not to be subjected to double jeopardy has not been violated.
The panel concluded that the defendant's double jeopardy claim barely met the threshold of "colorable" to support jurisdiction over this interlocutory appeal, where this court had not clearly reconciled its opinions in Garcia-Aguilar v. United States District Court, 535 F.3d 1021 (9th Cir. 2008), United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006), and United States v. Mendoza-Zaragoza, 567 F.3d 431 (9th Cir. 2009); and where the procedures set forth in Ellis v. District Court, 356 F.3d 1198 (9th Cir. 2004) (en banc), merit reiteration. The panel clarified that this opinion drains the color from any future attempt to seek an interlocutory appeal from a similar rejection of a guilty plea.
CALLAHAN, Circuit Judge:
Victor Manuel Valenzuela-Arisquesta ("Valenzuela") appeals from the district court's rejection of his guilty plea to illegal reentry into the country in violation of 8 U.S.C. § 1326. He asserts that the rejection of his plea violates his constitutional right against double jeopardy. We determine that the underlying premise for Valenzuela's insistence that the district court accept his plea – that the maximum sentence under the indictment was two years' incarceration – is wrong. Furthermore, because Valenzuela was not informed of the possible 20-year sentence, the district court properly rejected his guilty plea and allowed Valenzuela the option of again pleading guilty to the indictment or standing trial. Because the propriety of the district court's ruling was arguably not clear from our precedent, Valenzuela's double jeopardy argument was "colorable, " see United States v. Zone, ...