FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-50569

Plaintiff-Appellee, D.C. No.

v.  CR-02-00063-VAP07 EDWIN HERBERT ROSS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

December 4, 2007—Pasadena, California

Filed January 14, 2008

Before: Harry Pregerson, Stephen S. Trott, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Pregerson

441
COUNSEL

Karen L. Landau, Oakland, California, for the appellant. 

George S. Cardona, United States Attorney; Thomas P.

O’Brien, Assistant United States Attorney, Chief, Criminal

Division; Craig H. Missakian, Assistant United States Attorney for the appellee. 

OPINION

PREGERSON, Circuit Judge: 

Edwin Ross appeals his conviction and 188-month sentence

following a guilty plea to one count of conspiracy to distribute

more than fifty grams of cocaine base (crack), in violation of

21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a). We affirm in part and

remand in part. 

UNITED STATES v. ROSS 443
STANDARD OF REVIEW

We review de novo the sufficiency of a Rule 11 plea colloquy. United States v. King, 257 F.3d 1013, 1021 (9th Cir.

2001). A Rule 11 mistake not preserved by timely objection

below is subject to plain error review. United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). We review a district

court’s denial of a motion to withdraw a guilty plea for abuse

of discretion. United States v. Davis, 428 F.3d 802, 805 (9th

Cir. 2005). We apply a plain error standard of review to sentencing errors not raised below. United States v. Ameline, 409

F.3d 1073, 1074 (9th Cir. 2005).

DISCUSSION

I.

Ross argues that his guilty plea is invalid because the plea

colloquy did not comply with Federal Rule of Criminal Procedure 11. The district court showed great patience during the

lengthy plea colloquy, which lasted more than forty minutes

and spans thirty-three pages of the record. However, the court

overlooked its regular practice of advising the defendant that

the government must prove its case beyond a reasonable

doubt. See Benchbook for U.S. District Court Judges 78 (5th

ed.) (2007) (“Ask the defendant: Do you understand . . . that

at trial you would be presumed to be innocent and the government would have to prove your guilt beyond a reasonable

doubt[?]”). 

[1] This was error. Rule 11 provides, in part, that Ross must

understand his “right to a jury trial” and “the nature of each

charge” before his guilty plea may be accepted. See Rule

11(b)(1)(C), (G). Because the reasonable doubt standard of

proof is a due process requirement that permeates all aspects

of a criminal trial, see In re Winship, 397 U.S. 358 (1970), we

read Rule 11 as requiring an advisement of the reasonable

444 UNITED STATES v. ROSS
doubt standard of proof.

1

 Such an advisement was particularly

necessary in this case because admission to the stated drug

quantity exposed Ross to a higher sentence. United States v.

Minore, 292 F.3d 1109, 1113 (9th Cir. 2002) (“[B]efore

accepting a guilty plea, the district court must advise the

defendant that the government would have to prove to the jury

beyond a reasonable doubt any quantity of drugs that would

expose the defendant to a higher statutory maximum sentence.”); see also 21 U.S.C. § 841(b) (prescribing different

statutory maximums for violations involving various quantities of crack). 

[2] However, a Rule 11 error does not necessarily invalidate a guilty plea. Because Ross did not object to the Rule 11

violation, the plain error standard of review applies, with its

requirement that the defendant show “a reasonable probability

that, but for the error, he would not have entered the [guilty]

plea.” Dominguez Benitez, 542 U.S. at 76. 

[3] In ascertaining Ross’ understanding of the burden of

proof, we are not restricted to the record of the plea colloquy.

See United States v. Vonn, 535 U.S. 55, 74-75 (2002). Here,

Ross acknowledged his understanding of the standard of proof

in the affidavit he filed in support of his motion to withdraw

the guilty plea. His affidavit stated, “[y]our Honor, at the time

of my plea, I thought that I could . . . have the drug amount

1Other circuits have also recognized that an advisement of the reasonable doubt standard of proof is required under Rule 11. See, e.g., United

States v. Wagner, 996 F.2d 906, 912 (7th Cir. 1993) (“Pursuant to [Rule

11,] the court advised the defendants that . . . they would not be convicted

unless proved guilty beyond a reasonable doubt.”); United States v. Bell,

966 F.2d 914, 917 (5th Cir. 1992) (“[T]he district court engaged [the

defendant] in the requisite Rule 11 colloquy, advising him of . . . the right

to a . . . public trial by jury at which the government would have to prove

him guilty beyond a reasonable doubt . . . .”); United States v. Wade, 940

F.2d 1375, 1377 (10th Cir. 1991) (“[T]he district court followed the

requirements of Rule 11 by discussing with the defendant . . . the right . . .

to have the government prove all the elements of the offense beyond a reasonable doubt . . . .”). 

UNITED STATES v. ROSS 445
proven beyond a reasonable doubt.” Moreover, Ross read and

signed a plea agreement that informed him that he was giving

up “[t]he right to be presumed innocent and to have the burden of proof placed on the government to prove [him] guilty

beyond a reasonable doubt.” Because Ross knew the reasonable doubt standard applied, he cannot establish “a reasonable

probability that, but for the [Rule 11] error, he would not have

entered the [guilty] plea,” Dominguez Benitez, 542 U.S. at 76.

Accordingly, we hold that the district court’s failure to advise

Ross of the standard of proof did not constitute plain error.

II.

Alternatively, Ross argues that the district court abused its

discretion when it denied Ross’ motion to withdraw his guilty

plea. Ross claims that his intention to plead guilty to conspiracy while retaining the right to litigate the drug quantity constitutes a “fair and just reason” for withdrawing his plea under

Federal Rule of Criminal Procedure 11(d)(2)(B). He contends

that he did not understand the consequences of the guilty plea.

[4] Ross’ statements during the plea colloquy flatly contradict this claim. While under oath, he testified that he understood “the consequences to [him] of pleading guilty.” During

the colloquy, Ross asked, “will there still be a hearing to

establish a factual basis in determining the drug amount[?],”

and the court informed him, “by pleading guilty, you are

agreeing to the base amount.” The government then stated the

factual basis, which alleged that Ross conspired to distribute

“approximately 290 grams of cocaine base.” The court asked

Ross, “do [you] agree with what the attorney for the government just stated that you did in this case?,” and Ross said,

“[y]es.” When the court questioned, “[d]o you understand that

all that’s left in your case, if I accept your guilty plea, is for

you to be sentenced?,” Ross again replied, “[y]es.” Statements

made by a defendant during a guilty plea hearing carry a

strong presumption of veracity in subsequent proceedings

attacking the plea. United States v. Kaczynski, 239 F.3d 1108,

446 UNITED STATES v. ROSS
1115 (9th Cir. 2001) (giving “substantial weight” to a defendant’s in-court statements in determining whether a guilty

plea was voluntary); United States v. Anderson, 993 F.2d

1435, 1438 (9th Cir. 1993) (“[S]tatements made by a criminal

defendant contemporaneously with his plea should be

accorded great weight because [s]olemn declarations made in

open court carry a strong presumption of verity.”) (internal

quotation omitted). 

[5] Nor can the failure to advise Ross of the standard of

proof constitute a “fair and just reason” for withdrawal

because Ross understood that the reasonable doubt standard

applied, as reflected in the affidavit he filed and in the plea

agreement he signed — both of which are quoted above.

Accordingly, we uphold the district court’s decision to deny

Ross’ motion to withdraw his guilty plea. 

III.

[6] Finally, Ross requests that this case be remanded under

United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005). After

Ross was sentenced, the Supreme Court decided United States

v. Booker, 543 U.S. 220 (2005). In Booker, the Court held that

the Sentencing Guidelines are advisory and that the appellate

courts should review sentences for “unreasonableness.” Id. at

264. Here, the district court’s sentence was imposed at a time

when courts believed the Guidelines were a mandatory sentencing regime. This constitutes plain error under Booker. See

Ameline, 409 F.3d at 1073. Accordingly, we remand for further proceedings pursuant to Ameline.

2

See id. at 1084-85. 

2

It should be noted that the Sentencing Guidelines for crack cocaine

offenses were amended during Ross’ appeal. See Guidelines Manual

(2007), Appendix C, Amendment 706. The amendment adjusts downward

by two levels the base offense level assigned to each threshold quantity of

crack cocaine listed in the Drug Quantity Table in §2D1.1 and provides

a mechanism for determining the Guideline range for offenses involving

crack cocaine and other controlled substances. This amendment became

UNITED STATES v. ROSS 447
Conviction AFFIRMED; sentence REMANDED.

effective November 1, 2007, and applies to defendants sentenced on or

after that date. On March 3, 2008, time reductions for crack cocaine

offenders sentenced prior to November 1, 2007, will be authorized pursuant to 18 U.S.C. § 3582(c)(2). In addition, the Supreme Court recently

held that “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ . . . .” Kimbrough v.

United States, 552 U.S. ___ (2007). 

448 UNITED STATES v. ROSS