FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 08-10094

v. D.C. No.

BERNARDO MANCINAS-FLORES, AKA  CR-05-01086-ROS

Arturo Morales-Garcia, AKA OPINION Bernardo Mancias-Flores,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted October 5, 2009

San Francisco, California

Filed December 2, 2009

Before: Pamela Ann Rymer and A. Wallace Tashima,

Circuit Judges, and Lynn S. Adelman, * District Judge.

Opinion by Judge Adelman;

Partial Concurrence and Partial Dissent by Judge Rymer

*The Honorable Lynn S. Adelman, United States District Judge for the

Eastern District of Wisconsin, sitting by designation. 

15717
COUNSEL

Daniel Kaplan, Assistant Federal Public Defender, Phoenix,

Arizona, for the defendant-appellant.

Lisa Jennis Settel, Assistant United States Attorney, Phoenix,

Arizona, for the plaintiff-appellee. 

OPINION

ADELMAN, District Judge:

A Phoenix grand jury indicted defendant Bernardo

Mancinas-Flores for a variety of offenses arising out of defendant’s involvement in smuggling undocumented aliens into

the United States and holding them for ransom in a stash

house. On the morning the trial was to begin, defendant

decided to enter into a plea agreement with the government

pursuant to which he would plead guilty to a firearm charge.

Defendant attempted to plead guilty, but the district court

rejected his plea and ordered the case to proceed to trial,

whereupon the jury found defendant guilty on all counts, and

the court sentenced him to life in prison.

On appeal, defendant challenges the district court’s denial

of his motion to suppress evidence obtained pursuant to a

UNITED STATES v. MANCINAS-FLORES 15721
warrantless search of the stash house, its rejection of his

guilty plea, its decision admitting evidence of a sexual assault

and its sentence. We affirm the district court’s denial of the

motion to suppress. However, we vacate the court’s rejection

of defendant’s guilty plea and remand for a new plea hearing.

Because we remand for a new plea hearing, we do not address

the district court’s decision to admit evidence of a sexual

assault or its sentence.

I.

On October 6, 2005, Immigration and Customs Enforcement (“ICE”) agents in Phoenix learned that a Michigan resident had reported that smugglers were holding a relative of

the Michigan resident hostage in Phoenix pending payment of

a ransom. On October 7, 2005, Phoenix ICE learned that a

Kansas resident had called ICE agents in Kansas City and

reported that smugglers were holding his relative hostage in

Phoenix. The Kansas City resident knew the smugglers’

phone number, and ICE commenced an investigation, working with the telephone service provider to locate the phone

that the smugglers were using to make their demands. ICE

also coordinated and recorded additional calls between the

Kansas City resident and the smugglers, and during such

calls, the Kansas City resident persuaded the smugglers to

give him until October 10, 2005 to pay the ransom. 

On October 10, 2005, at approximately 11:00 a.m., ICE

identified a residence in Phoenix where the smugglers were

holding the undocumented aliens. ICE then contacted the

Phoenix Police Department’s Special Assignments Unit

(“SAU”) and requested that officers enter the residence and

rescue the hostages. When ICE initially discussed the situation with SAU, SAU determined that exigent circumstances

justifying a warrantless entry into the residence were not present. ICE and SAU discussed the possibility of a “knock and

talk” operation, in which officers would knock on the door of

the stash house and request permission to enter it. However,

15722 UNITED STATES v. MANCINAS-FLORES
between 11:30 a.m. and 11:45 a.m., an ICE agent reported

that the Michigan resident had just called again and stated that

during the October 6 call, the smugglers had threatened to

rape and beat his female relative unless he paid the ransom

immediately. Based upon this information, SAU decided that

exigent circumstances existed and, at about 12:15 p.m., executed a warrantless entry into the stash house, discovering

seventeen undocumented aliens and a loaded shot gun. The

hostages identified defendant and Andres Vazquez-Vera as

the smugglers. 

The government initially charged defendant and VazquezVera with conspiracy to commit hostage taking, hostage taking, conspiracy to harbor illegal aliens and harboring illegal

aliens. In a superceding indictment, it added a fifth count,

possession or use of a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c). Vazquez-Vera eventually pleaded

guilty.

Defendant moved to suppress the evidence obtained from

the entry into the stash house, and the district court denied the

motion, holding that defendant had no legitimate expectation

of privacy in the stash house and that even if he had, exigent

circumstances justified the search. The court also denied

defendant’s motion to bar the admission of evidence that he

had sexually assaulted a female alien.

On the morning of trial, the parties informed the court that

defendant had decided to plead guilty to the firearm count in

exchange for the government’s dismissing the remaining

counts and agreeing to a sentencing range of twenty to thirty

years. The court replied that it would reject any plea agreement that limited the sentence to thirty years, but that it would

entertain a plea agreement calling for a higher sentence. The

parties then reached a new plea agreement, under which

defendant would plead guilty to the firearm charge in

exchange for dismissal of the remaining counts and a sentencing range of twenty-five to forty years. 

UNITED STATES v. MANCINAS-FLORES 15723
The court then engaged in a colloquy with defendant,

which culminated in the following exchange:

THE COURT: Do you understand what’s happening

now today?

THE DEFENDANT: I do understand.

THE COURT: What’s happening?

THE DEFENDANT: I am accepting a charge, a

crime.

THE COURT: Have you talked to your attorney

about it?

THE DEFENDANT: Yes, we have talked.

THE COURT: And did she assist you in understanding what the agreement was?

THE DEFENDANT: Yes, she communicated to me

the things.

THE COURT: And have you decided, then, to plead

guilty?

THE DEFENDANT: Yes, I have decided to plead

guilty because I was told otherwise I could get life

in prison and I do have a family and children.

THE COURT: Are you pleading guilty because you

are guilty?

THE DEFENDANT: Well, those are the charges

they have filed against me. I have never been shown

evidence of fingerprints on the weapons or things

like that.

15724 UNITED STATES v. MANCINAS-FLORES
THE COURT: Are you pleading guilty because you

are guilty?

THE DEFENDANT: Well, I’m really not guilty.

THE COURT: All right. Let’s bring the jury up. All

right.

The court immediately commenced the trial, and the jury

found the defendant guilty on all five counts. The court sentenced him to life imprisonment on the hostage taking counts,

120 months on the harboring counts, and eighty-four months

on the firearm count, all concurrent, except for the firearm

sentence, which was consecutive.

II.

Defendant argues that the district court erred in its handling

of his guilty plea. He contends that the plea met all the

requirements of Fed. R. Crim. P. 11(b), and that therefore the

court had no discretion to reject it. See In re VasquezRamirez, 443 F.3d 692, 695-96 (9th Cir. 2006) (en banc)

(holding that a district court is required to accept a guilty plea

that satisfies the requirements of Fed. R. Crim. P. 11(b)).

Alternatively, defendant argues that even if the court had discretion to reject his plea, it did not adequately explain its reasons for doing so and thus failed to actually exercise

discretion. Because the district court abruptly cut off the plea

colloquy, we cannot conclude that the plea satisfied all of

Rule 11(b)’s requirements. As discussed below, however, we

agree with defendant’s alternative argument and therefore

vacate the district court’s rejection of defendant’s guilty plea

and remand for a new plea hearing.

A.

[1] We begin the analysis by reviewing some of the general

principles applicable to plea proceedings under the Federal

UNITED STATES v. MANCINAS-FLORES 15725
Rules of Criminal Procedure. A defendant may plead not

guilty, guilty or, with the court’s consent, nolo contendere.

Fed. R. Crim. P. 11(a). A plea of not guilty puts all material

elements of the crime in play, even the most obvious facts. 1A

Charles Alan Wright, Federal Practice & Procedure § 173

(3d ed. 1999). In contrast, a guilty plea is an admission of all

the elements of a formal criminal charge. McCarthy v. United

States, 394 U.S. 459, 466 (1969). A plea of nolo contendere

is “viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were

guilty and a prayer for leniency.” North Carolina v. Alford,

400 U.S. 25, 36 n.8 (1970). 

[2] Although unmentioned in Rule 11, courts and lawyers

sometimes refer to an “Alford plea.” An Alford plea is a plea

of guilty in which the defendant maintains his innocence. See

generally Alford, 400 U.S. at 36. See also United States v.

Crowell, 374 F.3d 790, 791 (9th Cir. 2004). An Alford plea

differs from a nolo plea in that a defendant pleading nolo contendere takes no position on guilt or innocence, whereas a

defendant entering an Alford plea takes the position that he is

not guilty. It bears repeating that, as far as the text of Rule 11

is concerned, there is no such thing as an Alford plea. An

Alford plea is simply shorthand for a guilty plea accompanied

by a protestation of innocence. Thus, when a defendant offers

what courts and lawyers describe as an Alford plea, the defendant is actually offering, in Rule 11 terms, a guilty plea. See

United States v. Tunning, 69 F.3d 107, 110-11 (6th Cir. 1995)

(discussing difference between Alford and nolo pleas and noting that an Alford plea is a guilty plea within the meaning of

Rule 11, not a nolo plea).

Rule 11 imposes a number of requirements on a district

court confronted with a guilty or nolo plea. Rule 11(b)(1)

requires the court to place the defendant under oath and

inform him of and determine that he understands both his

rights and the consequences of his plea. Rule 11(b)(2)

requires the court to ensure that the plea is voluntary — that

15726 UNITED STATES v. MANCINAS-FLORES
is, that it did not result from force, threats or promises other

than those in the plea agreement. 

[3] If the defendant offers a guilty plea (whether an Alford

plea or other), Rule 11(b)(3) requires the court to determine

that the plea has a factual basis. The purpose of this requirement is to ensure that the defendant is not mistaken about

whether the conduct he admits to satisfies the elements of the

offense charged. McCarthy, 394 U.S. at 466-67. Put differently, the factual basis requirement is designed to “protect a

defendant who is in the position of pleading voluntarily with

an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the

charge.” Fed. R. Crim. P. 11 advisory committee’s note

(1966). See also United States v. Mastrapa, 509 F.3d 652,

658-60 (4th Cir. 2007) (stating that the factual basis requirement guards against possible discrepancy between the defendant’s acknowledgment of guilt and his or her understanding

of what the crime entailed). The factual basis requirement

does not apply to nolo pleas. See Fed. R. Crim. P. 11(b)(3).

This is so because a defendant pleading nolo contendere takes

no position on whether he committed the elements of the

offense, and the court therefore has no reason to examine

whether, in fact, he did. See Fed. R. Crim. P. 11 advisory

committee’s note (1966) (“For a variety of reasons it is desirable in some cases to permit entry of judgment upon a plea

of nolo contendere without inquiry into the factual basis for

the plea.”).

[4] Rule 11(b)(3) does not specify the exact nature of the

inquiry that a district court must make when determining

whether a guilty plea has a factual basis. However, the Advisory Committee notes to the 1974 amendments suggest that

“[a]n inquiry might be made of the defendant, of the attorneys

for the government and the defense, of the presentence report

when one is available, or by whatever means is appropriate in

a specific case.” Thus, a court need not rely on the plea colloquy alone and “may conclude that a factual basis exists from

UNITED STATES v. MANCINAS-FLORES 15727
anything that appears on the record.” Mastrapa, 509 F.3d at

660 (internal quotation marks omitted). Further, as indicated

in Alford, a court can find a factual basis for a plea even if the

defendant insists that he is innocent. 400 U.S. at 37; United

States v. Neel, 547 F.2d 95, 96 (9th Cir. 1976). In such circumstances, the court must look to other evidence in the

record to determine whether the plea has a factual basis. See

Maxwell, 368 F.2d 735, 739 n.3 (9th Cir. 1966) (noting that

trial court could have found factual basis for plea even though

defendant could not personally vouch for his guilt). 

Before accepting a plea of nolo contendere, a court must

consider the parties’ views and the public interest in the effective administration of justice. Fed. R. Crim. P. 11(a)(3).

Although not precisely specified by the Rule, the reason for

considering these factors is that nolo pleas come with various

costs and benefits, and the court must ensure that in the case

before it the benefits outweigh the costs. See Fed. R. Crim. P.

11 advisory committee’s note (1974); United States v. Am.

Bakeries Co., 284 F. Supp. 864, 868-69 & n.1 (W.D. Mich.

1968) (discussing pros and cons of nolo pleas). In determining

whether to accept a nolo plea, a district court has broad discretion and may reject the nolo plea if it determines that

accepting the plea is not in the public interest. See Maxwell,

368 F.2d at 738.

Finally, we note that a district court may also have discretion to reject an Alford plea — even if the plea satisfies the

Rule 11(b) requirements. See United States v. O’Brien, 601

F.2d 1067, 1069 (9th Cir. 1979). However, our decision in

Vasquez-Ramirez casts doubt on this proposition. In VasquezRamirez, this court, sitting en banc, held that a district court

has no discretion to reject a guilty plea that meets the requirements of Rule 11(b). As discussed, Rule 11(b) does not

require a defendant to admit guilt. Thus, Vasquez-Ramirez

suggests that a district court has no discretion to reject a guilty

plea from a defendant who maintains his innocence so long as

the plea otherwise meets the Rule 11(b) requirements. How15728 UNITED STATES v. MANCINAS-FLORES
ever, Vasquez-Ramirez also acknowledged O’Brien’s statement that a court has discretion to reject an Alford plea and

did not expressly overrule O’Brien. 443 F.3d at 700. In the

present case, we need not resolve the tension between

O’Brien and Vasquez-Ramirez because, as explained below,

it is not clear that the district court rejected defendant’s plea

because it was an Alford plea.

B.

In the present case, defendant pleaded guilty, and when the

court questioned him, he stated that he had decided to plead

guilty because he had been advised that otherwise he faced

the possibility of a life sentence. The court then asked him

whether he was “pleading guilty because he was guilty,” and

he responded as follows: “Well, those are the charges they

have filed against me. I have asked for evidence but, for

example, I have never been shown evidence of fingerprints on

the weapons or things like that.” The court then repeated its

earlier question: “Are you pleading guilty because you are

guilty?,” and when defendant responded, “Well, I’m really

not guilty,” the court ended the colloquy and called for the

jury. The court did not state a reason for rejecting defendant’s

plea.

[5] The court’s failure to state a reason for rejecting the

plea is problematic. As explained in the discussion above, a

court may reject a guilty plea for a number of different reasons, and usually we would review its decision to reject the

plea for one of those reasons for abuse of discretion. However, without knowing the basis for the decision to reject the

plea in the first place, we cannot review for abuse of discretion. Abuse-of-discretion review is not meaningful where a

court fails to give reasons for its decision and its reasons are

not apparent from the record. Simpson v. Lear Astronics

Corp., 77 F.3d 1170, 1177 (9th Cir. 1996); Rarogal v. INS, 42

F.3d 570, 572 (9th Cir. 1994) (discretionary decision must

show proper consideration of all factors); Ins. Co. of N. Am.

UNITED STATES v. MANCINAS-FLORES 15729
v. Moore, 783 F.2d 1326, 1328 (9th Cir. 1986) (“Unless it is

clear from the record that the district court’s exercise of discretion was based on consideration of the relevant factors, we

cannot review the decision for abuse of discretion without

benefit of the lower court’s reason for deciding as it did.”

(Internal quotation marks and citations omitted)).

[6] In the present case, the district court did not give a reason for rejecting defendant’s plea and its reasons are not

apparent from the record. The record tells us only that the

court acted after defendant said that he was really not guilty.

But this tells us nothing about the court’s reasoning. Indeed,

we can think of at least four reasons for the court’s action that

are consistent with this record: (1) the court mistakenly

thought it could not accept a guilty plea from a defendant who

maintained his innocence; (2) the court thought that the plea

lacked a factual basis and thus had to be rejected under Fed.

R. Crim. P. 11(b)(3); (3) the court considered defendant’s plea

an Alford plea and exercised its discretion to reject it; and (4)

the court considered the plea a nolo plea and exercised its discretion to reject it under Rule 11(a)(3). Some of these reasons

might constitute a satisfactory basis for rejecting defendant’s

plea, but others would not. The record sheds no light on

which of these possibilities, if any, was the court’s actual reason for rejecting the plea, and therefore we cannot determine

whether the court abused its discretion. 

[7] This is not a case in which we may affirm so long as

any ground for affirming appears in the record. So although

it is possible that the district court properly exercised its discretion, such possibility does not enable us to affirm. When

a district court makes a discretionary decision, we will affirm

so long as the decision is within the range of permissible decisions that the court could have made given the law and the

facts confronting it. But before we can be sure that the district

court’s choice falls within that range, we need to be certain

that the district court applied the proper law, considered all

the relevant factors, and actually exercised its discretion. See

15730 UNITED STATES v. MANCINAS-FLORES
United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.

2005) (“[W]henever a district judge is required to make a discretionary ruling that is subject to appellate review, we have

to satisfy ourselves, before we can conclude that the judge did

not abuse his discretion, that he exercised his discretion, that

is, that he considered the factors relevant to that exercise.”).

In short, when we review for abuse of discretion, we necessarily review the district court’s decision-making process, not

simply whether the decision resulted in a permissible outcome.1

The dissent characterizes defendant’s plea as a hybrid of an

Alford and a nolo plea. Diss. Op. at 15740 n.2 & 15742 n.5.

Relying on United States v. Buonocore, 416 F.3d 1124, 1129-

31 (10th Cir. 2005), the dissent then argues that a judge may

adopt a policy of never accepting Alford or nolo pleas and

thus may reject either type of plea (or a hybrid) without stating any reason. But even assuming that a judge may adopt a

policy of refusing to accept all Alford or nolo pleas regardless

of the facts and circumstances of the case before her,2 the

judge must at least disclose that she has such a policy and that

she is rejecting the defendant’s plea pursuant to that policy.

Otherwise, we are left to guess at the district court’s reason

1Although, as the dissent points out, Diss. Op. at 15745, in some circumstances an appellate court will presume that a trial judge correctly

applied the relevant law, it cannot do so where, as here, the judge fails to

give any reason for a discretionary decision. To the contrary, we have held

that “[u]nless it is clear from the record that the district court’s exercise

of discretion was based on consideration of the relevant factors, we cannot

review the decision for abuse of discretion without benefit of the lower

court’s reason for deciding as it did.” Ins. Co. of N. Am., 783 F.2d at 1328

(internal quotation marks and citation omitted). Of course, a judge need

not “tick off” all applicable legal principles and show that it understood

and considered them, United States v. Carty, 520 F.3d 984, 992 (9th Cir.

2008) (en banc), but this does not mean that we will simply presume, in

the absence of reasons, that the judge did not abuse her discretion. 

2We stress that we do not decide that a district court in the Ninth Circuit

may adopt such a policy. Further, we reiterate that after Vasquez-Ramirez,

a district court may lack discretion to reject Alford pleas that satisfy the

requirements of Rule 11(b). 

UNITED STATES v. MANCINAS-FLORES 15731
for rejecting the plea, and we cannot know whether the district court applied the correct law or considered all the relevant factors. Indeed, in Buonocore, the district judge stated

that she had a policy against accepting Alford and nolo pleas,

that the law did not require that she accept such pleas, and

that she saw no reason to depart from her policy with respect

to the defendant’s plea. 416 F.3d at 1127.3 This statement of

reasons revealed that the district judge at least applied the

proper law and exercised her discretion in concluding that

Alford and nolo pleas are generally not in the public interest.

Thus, Buonocore does not support the proposition that a district judge need not give a reason when it rejects a guilty plea.

[8] The government suggests that the district court rejected

defendant’s plea because defendant’s statement that he was

really not guilty indicated that the plea was involuntary or

lacked a factual basis. The dissent also asserts that defendant’s statement caused the plea to lack a factual basis. Diss.

Op. at 15739. However, by itself, defendant’s statement does

not suggest either that the plea was involuntary or that it

lacked a factual basis. Even if he believed himself not to be

guilty, defendant may have realized that he would likely be

convicted and that it was in his best interest to plead guilty.

If so, the plea would not have resulted from force, threats or

promises outside of the plea agreement, and defendant’s statement that he was really not guilty would not have indicated

involuntariness. 

[9] With respect to whether defendant’s statement indicated

the absence of a factual basis, during the plea colloquy the

district court did not discuss the elements of the firearm

3Specifically, the court stated: “I do not accept Alfred [sic] pleas. That’s

what I told you at the beginning. I don’t accept them. I don’t accept

Alfreds [sic]. I don’t accept nolos. I cannot do this. You must admit intent.

I simply do not, nor will I. And I know the Supreme Court allows me to

do it. It’s disfavored, and I see no reason in this case to do that.” Buonocore, 416 F.3d at 1127 (internal quotation marks omitted). 

15732 UNITED STATES v. MANCINAS-FLORES
charge with defendant and did not ensure that defendant

understood how his conduct related to the elements of the

offense. And as explained above, the factual basis requirement is meant to ensure that a defendant does not plead guilty

based on a misunderstanding of his conduct in relation to the

elements of the crime charged. See McCarthy, 394 U.S. at

466-67; Mastrapa, 509 F.3d at 658-60; Fed. R. Civ. P. 11

advisory committee’s note (1966). If a defendant does not

understand the elements of the offense in the first place, his

statement that he is or is not guilty of that offense is meaningless. Thus, before the court could have found that defendant’s

plea lacked a factual basis based on his statement that he was

not guilty, it would have had to confirm that defendant knew

what guilt and innocence meant in the context of the firearm

charge. Only if defendant had denied committing a specific

element of the offense or protested his innocence even after

demonstrating that he understood the charge would the court

have had discretion to reject his plea for lack of a factual

basis. Even then, the court would have had to have actually

exercised its discretion and explained why it concluded that

the plea lacked a factual basis.

[10] Accordingly, we are not satisfied that the district

court’s rejection of defendant’s guilty plea was the result of

an exercise of discretion made after consideration of all the

relevant factors. We therefore vacate the court’s decision to

reject the plea. However, we cannot accept defendant’s contention that the district court was required to accept his plea.

The court did not discuss all of the subjects listed in Rule

11(b)(2), nor did it determine that the plea was voluntary and

supported by a factual basis. For this reason, the VasquezRamirez principle — that a district court must accept a guilty

plea that meets all of the Rule 11(b) requirements — does not

govern this case. Rather, we will remand the case for a new

plea hearing to enable the district court to ensure that the plea

complies with Rule 11(b) and to properly exercise its discretion in determining whether to accept the plea. On remand,

the district court must permit defendant to enter his guilty plea

UNITED STATES v. MANCINAS-FLORES 15733
on the terms agreed to by the government — that is, a plea of

guilty to the firearm count in exchange for dismissal of the

remaining counts and a sentencing range of twenty-five to

forty years.4 If the court accepts the plea, it must enter a new

judgment after sentencing defendant pursuant to the plea. In

United States v. Maddox, 48 F.3d 555, 559-60 (D.C. Cir.

1995), which we cited with approval in Vasquez-Ramirez, 443

F.3d at 700, the court utilized this procedure. We have also

used it in other cases where we concluded that a district court

abused its discretion in rejecting a plea. See, e.g. United States

v. Mendoza, 280 Fed. App’x 589, 590 (9th Cir. 2008).

Defendant asks that we direct that the case be assigned to

a different judge on remand, and the government has not

taken a position on reassignment. We deny the request

because the district judge has not “exhibited personal bias

requiring recusal,” nor are there any “unusual circumstances”

which warrant such reassignment. In re Ellis (Ellis v. U.S.

Dist. Court), 356 F.3d 1198, 1211 (9th Cir. 2004) (en banc).

C.

Before proceeding to the remaining issue, we address one

last matter in connection with the plea. The government

argues that even if the district court erred in rejecting the

guilty plea, we may review only for plain error because defendant did not object after the court rejected his plea. However,

as the Seventh Circuit has recently explained, a party does not

“object” to a court’s ruling; rather, when a party tries to

inform the court that a ruling it has already made is erroneous,

it is taking an “exception” to the ruling. United States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009). Under Fed. R. Crim.

P. 51(a), “[e]xceptions to rulings or orders of the court are

unnecessary.” Here, defendant asked the court to accept his

plea and argued in favor of it. At that point, the court was

4The government has not indicated that it is unwilling to offer these

terms on remand. 

15734 UNITED STATES v. MANCINAS-FLORES
required to ensure that the plea was appropriate. See United

States v. Alvarado-Arriola, 742 F.2d 1143, 1144 (9th Cir.

1982) (recognizing district court’s “duty,” upon defendant’s

presentation of a guilty plea, to determine whether the plea is

appropriate). For unspecified reasons, the district court

rejected the plea. At that point, defendant did not have to ask

the court to reconsider its decision or point out possible errors

in the decision.

[11] Even assuming defendant had an obligation to object

to the court’s ruling, the court afforded him no opportunity to

do so. Pursuant to Fed. R. Crim. P. 51(b), “[i]f a party does

not have an opportunity to object to a ruling or order, the

absence of an objection does not later prejudice that party.”

Here, when defendant stated that he was really not guilty, the

court called for the jury, giving defendant’s counsel no chance

to object, raise an exception, or otherwise remonstrate. Under

these circumstances, we cannot find that our review is limited

to plain error.

To be sure, defendant’s counsel might have better served

her client had she interrupted the court, asked for an explanation of its decision and requested a recess to meet with her client and determine whether to ask the court to reconsider its

rejection of the plea. But the Rules do not require a defendant

to force an objection or exception into the record. Rather,

exceptions are unnecessary, and an objection is required only

if the court affords a party the opportunity to make one. See

Cunningham, 429 F.3d at 679-80 (noting that although it

would have been desirable for defense counsel to call court’s

attention to its failure to explain discretionary ruling, the

Rules did not require counsel to do so).

III.

We next consider whether the district court erred in denying defendant’s motion to suppress evidence obtained as a

result of the warrantless search of the stash house. The district

UNITED STATES v. MANCINAS-FLORES 15735
court found that defendant had no legitimate expectation of

privacy in the stash house and that even if he did, the search

was justified by exigent circumstances. We find that exigent

circumstances justified the search and therefore do not decide

whether defendant had a reasonable expectation of privacy in

the stash house. 

Whether exigent circumstances justified a warrantless

search is a mixed question of law and fact which we review

de novo. United States v. Russell, 436 F.3d 1086, 1089 n.2

(9th Cir, 2006). However, we review any findings of fact

made by the district court in the course of its determination

for clear error. Id.

[12] “ ‘[W]arrants are generally required to search a person’s home or his person unless “the exigencies of the situation” make the needs of law enforcement so compelling that

the warrantless search is objectively reasonable under the

Fourth Amendment.’ Brigham City, Utah v. Stuart, 547 U.S.

398, 403 (2006) (quoting Mincey v. Arizona, 437 U.S. 385,

393-394 (1978), alteration in Brigham City). “One exigency

obviating the requirement of a warrant is the need to assist

persons who are seriously injured or threatened with such

injury.” Id. Many courts, including this one, have recognized

that an ongoing hostage situation presents exigent circumstances. Satchell v. Cardwell, 653 F.2d 408, 411-12 (9th Cir.

1981) (recognizing that exigent circumstances justified warrantless entry into home where officer reasonably believed

that woman was being held hostage inside); see also United

States v. Washington, 573 F.3d 279, 288 (6th Cir. 2009) (“In

burglary cases, the possibility that a lawful resident has been

injured or is being held hostage gives rise to exigent circumstances.”); United States v. De Jesus-Batres, 410 F.3d 154,

159 (5th Cir. 2005) (exigent circumstances justified warrantless search of garage suspected of containing smuggled alien

hostages); United States v. Richards, 937 F.2d 1287, 1291

(7th Cir. 1991) (recognizing that officer does not need a warrant to enter the apartment of someone who is holding hos15736 UNITED STATES v. MANCINAS-FLORES
tages inside); Montana v. Hammer, 759 P.2d 979, 983-84

(Mont. 1988) (exigent circumstances justified warrantless

entry into home where defendant was holding hostages).

[13] In light of the principle that an ongoing hostage situation presents exigent circumstances, we find that the search of

the stash house was reasonable. In the original phone call, the

smugglers threatened to kill and rape the hostages if the ransom remained unpaid. The smugglers agreed to give family

members until October 10th to pay the ransom before harming the hostages, but ICE did not locate the stash house until

October 10th, and thus time was running out. Further, testimony at the hearing on the motion to suppress indicated that

the officers’ conclusion that they did not have time to obtain

a warrant once they pinpointed the location of the stash house

was reasonable. Both an ICE agent and a SAU officer testified about instances in which they waited too long to enter a

stash house, resulting in people being raped or killed.

[14] Defendant argues that even if there were exigent circumstances, the government should have prepared in advance

to obtain a warrant, and its failure to do so rendered the search

unreasonable. He points out that between October 6, when

ICE learned of the hostage situation, and October 10, when it

located the stash house, ICE took no steps to prepare an application for a warrant or ensure that it could obtain a telephone

warrant upon locating the stash house. However, under the

circumstances presented, the government was not required to

anticipate exigent circumstances and prepare in advance to

obtain a warrant. 

Our decision in United States v. Couch is instructive. 688

F.2d 599, 603-04 (9th Cir. 1982). In Couch, customs agents

seized a suspected drug smuggler at an airport and detained

him without a warrant for an extended period of time based

on a confidential informant’s tip received the previous day.

Because of the tip, the agents knew the day before that the

smuggler would arrive but made no preparations for obtaining

UNITED STATES v. MANCINAS-FLORES 15737
a warrant. The defendant argued that this failure made his

extended warrantless detention unreasonable. However, this

court rejected his contention, holding that the agents did not

have to prepare to obtain a warrant because they could not

have known one would be needed until the smuggler arrived

at the airport and corroborated the informant’s tip. 

[15] Likewise, in the present case, ICE was not required to

predict what would happen during the course of its investigation. Although ICE hoped that it would locate the hostages

with help from the telephone service provider, the investigation could have taken a different turn during the days leading

up to the search. Indeed, prior to locating the stash house, ICE

did not even know if the hostages were being held inside a

residence, inside a business, or out in the desert. (ER Vol. II

at 67:17 to 68:6.) Until ICE located the stash house and confirmed the hostages’ presence, it did not know that a warrant

would be necessary or what to state in an affidavit. Upon

locating the stash house, the ongoing threat of harm to the

hostages justified an immediate entry. Thus, as in Couch, the

agents in the present case were not required to apply for a

warrant ahead of time or arrange for a telephonic warrant.5

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

the defendant’s motion to suppress the fruits of the search of

the stash house.

IV.

For the reasons stated, we VACATE the district court’s

rejection of defendant’s guilty plea and REMAND with

instructions that the district court hold a new plea hearing and

allow defendant to plead guilty to the firearm charge pursuant

to the plea agreement. If the court accepts the plea, the court

should sentence defendant in accordance with the plea and

5We add that we do not rule out the possibility that, under different circumstances, the failure to prepare a warrant in advance could be found to

negate exigent circumstances. 

15738 UNITED STATES v. MANCINAS-FLORES
enter a new judgment. If the court rejects the plea, it must

clearly state its reasons so that we can determine in any subsequent appeal whether the court abused its discretion. We

AFFIRM the district court’s denial of defendant’s motion to

suppress.

AFFIRMED in part, VACATED in part, and

REMANDED.

RYMER, Circuit Judge, concurring in part and dissenting in

part:

I would not allow Mancinas-Flores another crack at pleading guilty to the firearm charge. Having offered to enter a

guilty plea, Mancinas-Flores told the judge during the Rule 11

colloquy: “I’m really not guilty.” The judge then stopped the

proceeding. I believe she had discretion to do so because Fed.

R. Crim. P. 11(b)(3) requires a factual basis for a guilty plea.

Cf. In re Vasquez-Ramirez, 443 F.3d 692, 695 & n.4, 700 n.9

(9th Cir. 2006) (holding that a district judge has no discretion

to reject a guilty plea when all the requirements of Rule 11(b)

are met, but does have discretion to reject a guilty plea “when

he feels the plea has failed to meet the Rule 11(b) requirements”).

At no point did Mancinas-Flores ask for a recess, a continuance, or an opportunity to explain his response, nor did he

indicate that the court should treat his plea as a nolo contendere plea or as an Alford plea,1

 nor did he object at the

1North Carolina v. Alford, 400 U.S. 25 (1970). As the Tenth Circuit

succinctly explained: 

A plea of nolo contendere is “a plea by which a defendant does

not expressly admit his guilt, but nonetheless waives his right to

a trial and authorizes the court for purposes of the case to treat

him as if he were guilty.” An “Alford” plea, named after the

UNITED STATES v. MANCINAS-FLORES 15739
hearing or later that the district court misunderstood his intentions, the nature of his plea, or the law. He did not ask to try

again, or for reconsideration. Now he says he was offering an

Alford plea, but in these circumstances I would decline to

consider a theory about the plea that was nowhere presented

to the district court.

Even assuming that what Mancinas-Flores really wanted to

do was enter an Alford plea — despite the fact he never said

so and did not state at the plea hearing that he was innocent

— the district court had broad discretion to decline to go forward.2

 We have made clear that a court is under no obligation

to accept an Alford plea. As we said in United States v.

O’Brien, a court “may accept a guilty plea of one who protests his innocence, United States v. Alford, but acceptance is

not required.” 601 F.2d 1067, 1069 (9th Cir. 1979) (citation

omitted). Mancinas-Flores suggests that O’Brien is out-ofdate, but O’Brien has never been overruled and indeed, Alford

itself — and Rule 11 — makes the same point. Alford, 400

U.S. at 38 n.11; Fed. R. Crim. P. 11 advisory committee’s

note (1974); Fed. R. Crim. P. 11(a)(1).3

Supreme Court’s decision in North Carolina v. Alford, is a plea

denominated as a guilty plea but accompanied by protestations of

innocence. 

United States v. Buonocore, 416 F.3d 1124, 1127 n.2 (10th Cir. 2005)

(citation omitted). 

2Actually, Mancinas-Flores’ “I’m really not guilty” plea was neither a

true Alford plea — where the defendant proclaims his innocence — nor

a true nolo contendere plea —where the defendant does not admit guilt but

accepts the court treating him as guilty for purposes of the particular case.

Mancinas-Flores’ proffer falls somewhere between the two, thus short of

both, for which there is no precedent. If a defendant wants a court to

accept a plea agreement but refuses to admit his own guilt, then he must

navigate the waters of an Alford plea or a nolo plea. Mancinas-Flores

never made that attempt, which is another reason I would adjure the

course taken by the majority. 

3Although a type of guilty plea, the advisory committee notes indicate

that an Alford plea is procedurally treated as a nolo plea. See Fed. R.

15740 UNITED STATES v. MANCINAS-FLORES
Mancinas-Flores argues, and the majority holds, that the

district court’s failure to explain its reasons means that it did

not actually exercise its discretion. I disagree given the record

in this case. Mancinas-Flores neither objected nor sought an

explanation; no doubt it was as obvious to him then, as it is

to me now, that the district court rejected his guilty plea

because he said he really wasn’t guilty. The court could do

this whether his plea is characterized as it was at the time —

an ordinary, “straight-up” guilty plea — or as it is now, a

putative Alford plea. See, e.g., O’Brien, 601 F.2d at 1070

(declining to find abuse of discretion in rejecting guilty plea

when a defendant refused to admit guilt); Buonocore, 416

F.3d at 1129-31 (upholding district court’s discretion to adopt

a general policy against Alford or nolo pleas).4 If a district

Crim. P. 11 advisory committee’s note (1974). Rule 11(a)(1) provides that

a defendant may plead nolo contendere only “with the court’s consent.”

The Tenth Circuit so held in Buonocore, 416 F.3d at 1127 n.2, 1129-31,

aligning itself with O’Brien, but the Sixth Circuit took a different view in

United States v. Tunning, 69 F.3d 107, 110-11 (6th Cir. 1995), holding

that Rule 11 imposes no consent requirement akin to Rule 11(a)(1) for

Alford-type guilty pleas. To the extent the majority is influenced by Tunning, see maj. op. at 15726, I believe we are instead bound by O’Brien.

4As the Tenth Circuit explained in Buonocore: 

Secondary sources also provide support for the proposition that

a district court has discretion to reject Alford or nolo pleas based

on a general policy against such pleas. According to Wright and

Miller, “the court is not required to accept a guilty plea from one

who asserts he is innocent.” 1A Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure, § 174, at 201-02 (3d

ed. 1999). “It is discretionary with the court whether to accept the

plea and it is wholly unlikely that refusal to accept the plea would

be regarded as error on appeal.” Id. § 177, at 294. According to

the American Law Reports: 

One of the most important characteristics of the plea of nolo

contendere, which distinguishes it fundamentally from the

plea of guilty to which it is so frequently linked by the

courts, is that its acceptance by the court is not a matter of

right of the defendant but is entirely within the discretion of

the court. 

UNITED STATES v. MANCINAS-FLORES 15741
court may reject an Alford plea as a matter of unarticulated

preference, it follows that the court may do so without articulated reason.5

The reasons an Alford plea is problematic are, in any event,

well recognized. To quote the Advisory Committee to Rule

11:

The defendant who asserts his innocence while

pleading guilty or nolo contendere is often difficult

to deal with in a correctional setting, and it may

therefore be preferable to resolve the issue of guilt or

innocence at the trial stage rather than leaving that

issue unresolved, thus complicating subsequent correctional decisions. The rule is intended to make

clear that a judge may reject a plea of nolo contendere and require the defendant either to plead not

guilty or to plead guilty under circumstances in

which the judge is able to determine that the defendant is in fact guilty of the crime to which he is

pleading guilty.

All the later cases support the proposition that the plea of

nolo contendere cannot be entered by the defendant as a matter of right but is pleadable only by leave of court, its acceptance by the court being entirely a matter of grace. 

89 A.L.R.2d 540, § 14 (emphasis added). 

5Curiously, the majority states that even if Buonocore is right and a district court may adopt a policy of refusing to accept all Alford pleas, it must

at least disclose that it has such a policy and that it is rejecting the defendant’s plea pursuant to that policy. Maj. op. at 15728. Here, of course,

there is no indication that the district judge had any such policy. Nor is

there any reason why she should have disclosed her position on Alford

pleas; the word Alford was never mentioned. So we have no call in this

case to opine one way or the other on how district courts ought to conduct

a true Alford hearing. My point in relying on Buonocore (which, in turn,

relied on O’Brien), is that if a district court may reject a real Alford plea

on a blanket basis, it could certainly reject the hybrid plea in this case for

which there is no basis at all. 

15742 UNITED STATES v. MANCINAS-FLORES
Fed. R. Crim. P. 11 advisory committee’s note (1974) (quoted

and relied upon in Buonocore, 416 F.3d at 1130). And, as we

said in O’Brien, “ ‘[h]owever legally sound the Alford principle, which . . . we do not dispute, the public might well not

understand or accept the fact that a defendant who denied his

guilt was nonetheless placed in a position of pleading guilty

and going to jail.’ ” 601 F.2d at 1070 (quoting United States

v. Bednarski, 445 F.2d 364, 366 (1st Cir. 1971)).6

Beyond this, I disagree with the majority’s premise that the

district court might have rejected the plea for improper as well

as proper reasons. Maj. op. at 15728. Rather, I presume that

district judges know the law. See, e.g., United States v. Carty,

520 F.3d 984, 992 (9th Cir. 2008); Walton v. Arizona, 497

U.S. 639, 653 (1990) (“Trial judges are presumed to know the

law and to apply it in making their decisions.”), overruled on

other grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002).

Thus, I presume that the experienced district judge in this case

knew that she could accept a plea accompanied by protestations of innocence,7

 but that she didn’t have to.

I also disagree with the majority’s suggestion that VasquezRamirez calls into question a district court’s discretion to

reject an Alford plea. Maj. op. at 15728-29. Vasquez-Ramirez

6What happened at sentencing in this case illustrates why “a judge may

reject a plea of nolo contendere and require the defendant either to plead

not guilty or to plead guilty under circumstances in which the judge is able

to determine that the defendant is in fact guilty of the crime to which he

is pleading guilty.” Fed. R. Crim. P. 11 advisory committee’s note (1974).

Mancinas-Flores personally told the judge that “in no moment did I have

anything to do with those people.” Likewise, his objection to the presentence report states: “Mr. Mancinas-Flores maintains his plea of innocense

and denies the allegations of the Indictment. Mr. Mancinas-Flores adamantly disputes the jury’s findings of guilt. Based on his continuing plea

of innocense, Mr. Mancinas-Flores holds that the statements of the witnesses, whether under oath or in the pre-sentence report, are false.” 

7To repeat, Mancinas-Flores did not state at the plea hearing that he was

innocent. 

UNITED STATES v. MANCINAS-FLORES 15743
concerned a routine guilty plea in which the defendant admitted guilt, unlike this case where Mancinas-Flores tried to enter

a guilty plea while insisting that he is “really not guilty,” or

a typical Alford plea where the defendant asserts his innocence but is nevertheless willing to accept punishment and

there is “strong evidence of actual guilt,” Alford, 400 U.S. at

37. Vasquez-Ramirez does not purport to speak to the situation in this case, or to an Alford plea. See 443 F.3d at 694-95.

Indeed, Vasquez-Ramirez cites O’Brien with approval for the

proposition that “[a] trial court has discretion to accept or

reject a guilty plea . . . of one who protests his innocence.” Id.

at 700 (citing and quoting O’Brien, 601 F.2d at 1069).

Finally, even if the district judge erred by failing to give

reasons, I would simply remand for the court to explicate its

ruling. In all the circumstances of this case, including that

Mancinas-Flores went to trial without giving the district court

any notice of any objection, I see no need for letting him go

back to square one (now that he knows the result of trial and

sentencing) without first allowing the district court the opportunity to cure the deficiencies Mancinas-Flores and this court

have identified which, had they been timely identified, the

court could have done to begin with. 

Accordingly, I dissent from Part II, though I concur in Part

III.

15744 UNITED STATES v. MANCINAS-FLORES