UNITED STATES of America, Plaintiff-Appellee, v. Carlos DOMINGUEZ BENITEZ aka Carlos Dominguez, Defendant-Appellant, 310 F.3d 1221

JAMES R. BROWNING, Circuit Judge. Appellant Carlos Dominguez Benitez (“Benitez”) appeals his conviction, entered upon a plea of guilty, and his 120 month sentence for conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846. Benitez contends his conviction must be reversed because the district court failed to comply with Fed.R.Crim.P. 11(e)(2) by not informing him he could not withdraw his guilty plea if the court did not accept the sentencing recommendation set forth in the plea agreement. We agree and reverse. I.

On May 28, 1999, Benitez was charged with conspiracy to possess with intent to distribute and possession with intent to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Benitez entered into a written type (

B) plea agreement with the government in which he agreed to plead guilty to the charge of conspiracy to possess with irltent to distribute. This charge carried a base offense level of 32. However, the government stipulated to a two-level downward adjustment for the safety valve provision and a three-level downward adjustment for acceptance of responsibility, resulting in an offense level of 27 and a Guideline range of 87 to 108 months. The parties expected Benitez to qualify for the safety valve provision.

The plea agreement stated that Benitez could not withdraw his guilty plea if the district court did not accept the recommended sentence. At the change of plea hearing, Benitez testified that the agreement had been read to him in Spanish, his native language, that he discussed the agreement with his counsel, and that he understood the agreement. The record, however, reveals that Benitez complained to the court that he lacked communication with his counsel before the change of plea hearing and that he renewed his complaint several times before sentencing.

Additionally, Benitez told the court at sentencing that he did not understand the applicable sentencing guidelines or safety valve provision. At the change of plea hearing, the district court advised Benitez that the court’ was not a party to the plea agreement, that the plea agreement was not binding on the court, and that Benitez would be sentenced to the mandatory minimum, 120 months, if he was ineligible for the safety valve provision. However, the court failed to inform Benitez he could not withdraw his guilty plea if the court did not accept the recommendation set forth in the plea agreement.

The court questioned Beni-tez’s counsel and the prosecutor regarding Benitez’s eligibility for the safety valve provision and both said they believed Beni-tez would qualify. The presentence report was issued January 31, 2000. The report stated Benitez had a criminal history category of III, rather than I, because he had two prior criminal convictions obtained under aliases. As a result, Benitez did not satisfy criteria one of the safety valve provision and the court was required to impose the mandatory minimum sentence.

The report recommended an offense level of 29, which corresponded to a Guideline range of 108 to 135 months. The mandatory minimum sentence was 120 months. At the sentencing hearing, the prosecutor informed the court that “the government stands behind [the] plea agreement and its recommendations in every way, except we are precluded from going below [the mandatory minimum] because of the safety valve.” Both parties recommended the court sentence Benitez to the mandatory minimum. The court accordingly sentenced Benitez to 120 months. II.

Of the three types of plea agreements governed by Rule 11, only “type (B)” agreements prohibit the defendant from withdrawing his guilty plea if he fails to receive the sentence for which he bargained. For this reason, Fed.R.Crim.P. 11(e)(2) expressly requires that if a defendant enters into a type (

B) agreement, the court “shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea.” Because type (

B) agreements embody such a high degree of risk to the defendant, the advisement required by Rule 11(e)(2) is of critical importance. In this case, it is undisputed that Benitez entered into a type (

B) plea agreement, and that the district court failed to give the warning required by Rule 11(e)(2). Because Benitez did not object to the district court’s error at the change of plea hearing, we review for plain error. United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002). We may reverse Benitez’s guilty plea conviction if: (1) the district court erred, (2) the' error was “plain,” and (3) the error affected Benitez’s “substantial rights.” See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Even if these three conditions are met, we retain discretion and should not employ it to correct the district court’s plain error unless it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. III. There is no question that the district court erred. The district court’s error was also plain. “Plain” error is error that is “clear” or “obvious.” Id. at 734, 113 S.Ct. 1770. At the time of Benitez’s change of plea hearing, our precedent clearly required courts to comply with Rule 11(e)(2). See, e.g., United States v.

Kennell, 15 F.3d 134, 136 (9th Cir.1994); United States v. Graibe, 946 F.2d 1428, 1435 (9th Cir.1991). To show the district court’s plain error affected his substantial rights, Beni-tez must prove that the court’s error was not minor or technical and that he did not understand the rights at issue when he entered his guilty plea. United States v. Minore, 292 F.3d 1109,1118 (9th Cir.2002). Benitez must satisfy both elements to meet his burden. Id. Benitez has satisfied the first element.

We have stated, “[t]he warning required by Rule 11(e)(2) provides an ‘important safeguard’ designed to ensure that the plea is ‘intelligent’ and ‘knowing,’ and the omission of such warning is neither ‘minor’ nor ‘technical.’ ” Graibe, 946 F.2d at 1433. We have since qualified this statement by concluding that if a court imposes the recommended sentence, its Rule 11 error is “merely technical” and does not require the sentence be set aside. United States v. Chan, 97 F.3d 1582, 1584 (9th Cir.1996).

We based this conclusion on the underlying principle that a defendant’s substantial rights are not compromised if he receives the sentence for which he bargained. Id. In this case, although the district court imposed the sentence urged by both parties at the sentencing hearing, the sentence was substantially higher than the one for which Benitez bargained. The district court’s error, therefore, was neither “minor” nor “technical.” In order to satisfy the second element, Benitez must show he did not understand his rights when he entered his plea. Minore, 292 F.3d at 1118.

The government argues Benitez cannot meet this burden because the written plea agreement included the Rule 11(e)(2) “warning.” In support of its position, the government cites Benitez’s testimony at the change of plea hearing that the agreement had been read to him in Spanish, he had discussed it with his attorney, and he understood it. In Kennell, we rejected the same argument.

We explained: Because there is a marked difference between being warned in open court by a district judge and reading some boilerplate language during the frequently hurried and hectic moments before court is opened for the taking of plea and arraignments, the reading of the plea agreement is not a substitute for rigid observance of Rule 11. Kennell, 15 F.3d at 136; see also United States v. Smith, 60 F.3d 595, 598-599 (9th Cir.1995). The government’s argument that the Supreme Court’s decision in Vonn undercut this rule is unpersuasive.

Vonn held that unless the defendant objects at the plea hearing, he must bear the burden of proving a Rule 11 error affected his substantial rights. 122 S.Ct. at 1046. Vonn also held that in assessing the effect of a Rule 11 error on a defendant’s substantial rights, reviewing courts may consider the entire record, not just the change of plea transcript. Id. These rules need not inevitably lead to the conclusion that a defendant understood he could not withdraw his plea whenever the Rule 11(e)(2) “warning” is included in the written agreement.

The Kennell court’s concern with respect to the difference between a defendant reading boiler-plate language in an agreement and being advised of a fact in open court is no less valid after Vonn. If including the “warning” in the plea agreement were sufficient to inform a defendant he could not withdraw his guilty plea, Rule 11(e)(2) would have little force. See United States v.

Livorsi, 180 F.3d 76, 81 (2d Cir.1999) (“As the existence of Rule 11(e)(2) itself indicates, the best way to ensure that a defendant is fully aware of the implications of his decision to plead guilty is, after all, for the district judge to give the proper warning in open court”). In this case, the fact that the written plea agreement included the Rule 11(e)(2) “warning” does not establish that Benitez understood he could not withdraw his plea if the court did not sentence him according to its terms. The plea agreement was in English and read to Benitez by an interpreter.

Since Benitez was unable to read English, he had no opportunity to examine its provisions himself. Because his counsel and the prosecutor advised him he would in any event probably qualify for the safety valve provision and serve less than the mandatory minimum, Benitez had little incentive to attempt to ascertain the details of the agreement. The government also argues Benitez cannot show that he did not understand his rights because “the clear import” of statements made by the court show Benitez must have understood that he could not withdraw his guilty plea.

The government points out that the court told Benitez he would receive a ten year sentence if he was ineligible for the safety valve provision, that the court was not a party to the plea agreement, and that there were no promises regarding the sentence he would receive, his criminal history category, or his eligibility for the safety valve provision. We rejected a similar argument in Graibe. There we concluded that informing a defendant that a judge is not bound by the government’s recommendation and has the discretion to impose a higher sentence “is simply not enough.” Graibe, 946 F.2d at 1435.

We stated: The proposition that the court is not bound by the Government’s recommendations is distinct from the proposition that the defendant is bound if the court chooses not to follow the recommendation. Informing the defendant of the former does not relieve the court of its responsibility to inform him of the latter. Id. at 1434 (quoting United States v. Theron, 849 F.2d 477, 481 (10th Cir.1988)). See also United States v. DeBusk, 976 F.2d 300, 307 (6th Cir.1992); United States v. Iaquinta, 719 F.2d 83, 85 (4th Cir.1983). Our recent decision in Vonn is clearly distinguishable from this case.

In Vonn, although the district court failed to comply with Fed.R.Crim.P. 11(

c) by not informing the defendant of his right to counsel dim-ing the plea colloquy, the defendant was informed of the right both at his initial appearance and at his arraignment. See United States v. Vonn, 294 F.3d 1093, 1094 (9th Cir.2002). See also United States v. Siu Kuen Ma, 290 F.3d 1002, 1005 (9th Cir.2002) (finding no “plain error” where the district court violated Fed.R.Civ.P. 11(c)(6) by not informing the defendant of a provision in agreement waiving his right to appeal but the prosecutor summarized the terms of the plea, including the waiver provision, in open court).

In this case, Benitez was never informed in open court that he could not withdraw his guilty plea if he failed to receive the benefit of his bargain and nothing in the record aside from the written plea agreement suggests he understood this fact. Benitez has met his burden of establishing that the district court’s error was not merely technical and that he did not understand he could not withdraw his guilty plea if the court did not accept the sentencing recommendation in the plea agreement.

Accordingly, the district court’s failure to give the Rule 11(e)(2) “warning” affected Benitez’s “substantial rights.” We should exercise our discretion to correct the error if a “miscarriage of justice would otherwise result.” United States v. Sayetsitty, 107 F.3d 1405, 1413 (9th Cir.1997). Benitez pled guilty with the expectation that the safety valve provision would apply and he would serve a sentence 12 to 33 months shorter than the sentence he received. The parties so stipulated in the written plea and Benitez’s counsel and the prosecutor reinforced that expectation at the change of plea hearing.

Although the court advised Benitez that it was not bound by the plea agreement, it failed to inform him he could not withdraw his guilty plea if he failed to receive the benefit of his bargain. Holding Benitez to his guilty plea when he was not fully aware of the consequences of the plea would constitute a miscarriage of justice. See Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir.1988) (“A plea of guilty is voluntary only if it is entered by one fully aware of the direct consequences of his plea”). IV.

Because the district court’s failure to comply with Fed.R.Crim.P. 11(e)(2) constituted plain error which affected Benitez’s substantial rights, and failure to correct the error would result in a miscarriage of justice, we reverse Benitez’s conviction and remand to the district court for further proceedings consistent with this opinion and the accompanying memorandum disposition.

REVERSED and REMANDED. .The safety valve provision states a court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory mandatory minimum if the defendant meets five criteria: (1) the defendant does not have more than one criminal history point; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon; (3) the offense did not result in death or serious bodily injury; (4) the defendant was not the organizer, leader, manager or supervisor of others and was not engaged in a continuing criminal enterprise; and (5) the defendant has truthfully provided the government all information the defendant has concerning the offense(

s) that were part of the same course of conduct. See U.S.S.G. § 5C1.2 (1998). . The government also agreed to recommend a sentence at the low-end of the Guideline range provided the court calculated Benitez's offense level as 27 or higher. . In the plea agreement, the parties stipulated that Benitez satisfied safety valve provision criteria two through four as set forth in Sentencing Guideline § 5C1.2. Because the pre-sentence report had not been completed, the parties had no agreement regarding criteria one, Benitez’s criminal history category.

The parties believe Benitez's criminal history category was I, which would qualify him for the safety valve provision. . For the same reason, our recent decision in United States v. Morales-Robles, 309 F.3d 609 (9th Cir.2002) is inapposite to this case. In Morales-Robles, the defendant was not informed of his right to persist in his not guilty plea, but he was informed of his rights to a speedy and public trial and to call witnesses on his behalf.

Because the right to plead not guilty is subsumed in the right to have a trial, we held that the failure to state specifically that the defendant was entitled to persist in his not guilty plea did not adversely affect his substantial rights. Here, by contrast, the court advised Benitez that it was not bound by the plea agreement, but never informed him that he himself was bound.