FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-10656 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00650-SMM

JOSE LUIS GONZALEZ-FLORES,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, District Judge, Presiding

Submitted April 11, 2005*

San Francisco, California

Filed August 12, 2005

Before: Donald P. Lay,** Betty B. Fletcher, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Betty B. Fletcher

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Donald P. Lay, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation. 

10491
COUNSEL

Paul J. Mattern, Phoenix, Arizona, for the defendantappellant. 

Joan G. Ruffennach, Assistant U.S. Attorney, Phoenix, Arizona, for the plaintiff-appellee. 

OPINION

B. FLETCHER, Circuit Judge: 

Defendant-appellant Jose Luis Gonzalez-Flores

(“Gonzalez”) was convicted of alien smuggling for leading a

group of nearly two dozen Mexicans into the United States

across the desert. In this direct appeal, Gonzalez claims that

the evidence was insufficient to support his conviction and

that certain testimony admitted at trial was irrelevant and

unduly prejudicial. Gonzalez also attacks his sentence on

Booker grounds; the government argues in response that he

waived his Sixth Amendment rights. 

UNITED STATES v. GONZALEZ-FLORES 10495
We hold that the evidence was sufficient to support the

conviction and that the error arising from the admission of the

prejudicial testimony was harmless, and therefore we affirm

the conviction. However, we reject the government’s contention that Gonzalez waived his Sixth Amendment rights when

his attorney moved to exclude the prejudicial testimony. We

therefore remand the case pursuant to United States v. Ameline.

I. BACKGROUND

Gonzalez was convicted on one count of bringing in illegal

aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(i). The following facts emerged at trial: 

In late May 2003, a group of twenty-three Mexican nationals set out on foot from Mexico across the desert into the

United States. Three members of the group were detained by

a border patrol agent on a road near Interstate 8 in Arizona;

these individuals told the agent that there were approximately

twenty other members of their group still in the desert. A

search and rescue operation was initiated, and border patrol

agents found nineteen members of the group in the desert.

Two teenage girls from the group were suffering from severe

heat exhaustion and respiratory problems and were airlifted to

a hospital. Another agent, responding to a report of an illegal

alien, encountered and detained Gonzalez at a barn off I-8

near Yuma, Arizona. 

Three members of the group, Miguel Gonzalez-Flores (no

relation to defendant), Eduardo Salinas-Zagal, and Everardo

Salinas-Zagal (Eduardo’s brother), were detained as material

witnesses and deposed on videotape two weeks after the crossing.1

 Gonzalez’s lawyer cross-examined the witnesses in the

videotaped depositions. 

1To avoid confusion, we refer to the deposed witnesses by their first

names. 

10496 UNITED STATES v. GONZALEZ-FLORES
The videotapes of the three depositions were played for the

jury. All three witnesses testified that they were Mexican

nationals and that, led by the defendant, they had crossed the

border other than at a port of entry. Miguel met the two brothers at a border town in Mexico, and they discussed hiring a

guide to help them walk across the border. They then met

Gonzalez, who indicated that he knew the way through the

desert, and so they went with him. They expected to pay Gonzalez for being their guide. 

Gonzalez led a group of nearly two dozen people — including Miguel, Eduardo, and Everardo — through the desert and

across the border. The group spent a full night and half a day

walking in the desert. At some point during the trek, the group

ran out of water, and Gonzalez left the group to go look for

some. Sometime thereafter, border patrol agents found the

group. 

The initial indictment charged that Gonzalez placed lives in

jeopardy in connection with the offense. Noting that any injuries to members of Gonzalez’s group would not go to an element of the crime of bringing in aliens, the court questioned

the parties prior to trial as to the propriety of including this

fact in the indictment. Gonzalez’s lawyer argued: “Since it’s

only a sentencing issue, I don’t think we should concern the

jury with it. . . . I don’t believe it should be included in the

indictment or brought to their attention or have them in any

way find anything about it.” Gonzalez himself made no statement on the matter. The court ruled that the matter of the

harm to others was a sentencing issue and not an element;

consequently, evidence of the injuries sustained by individuals Gonzalez brought across the border should be presented at

sentencing rather than to the jury at trial.2

2This discussion took place on September 2, 2003, more than nine

months before the Supreme Court decided Blakely v. Washington, 542

U.S. 296 (2004). 

UNITED STATES v. GONZALEZ-FLORES 10497
Just before the commencement of the trial, however, the

court revisited the subject of the group members’ injuries.

Gonzalez’s lawyer asked the judge to confirm that no testimony as to the two girls’ heat stroke would be permitted and

suggested he would stipulate to the injuries, if necessary, at

sentencing. The government responded that the girls’ distress

“was an important part of the event, and it’s certainly relevant

with respect to sentencing issues.” The court ruled: “I don’t

want to get too far afield if that’s not an element of the

offense, if it’s a sentencing issue. But I think the government

is entitled to some latitude . . . and I’m going to allow [the

government] to get into some of that evidence, about the

results of what happened. So your objection’s overruled.” 

During the trial, a border patrol agent described finding the

two girls, who needed “immediate medical care, advanced

medical care.” The agent characterized the cause of the medical distress as “[h]eat exhaustion turning into heatstroke.”

According to the agent, during the helicopter flight to the hospital, one of the girls stopped breathing and required resuscitation by rescue breathing. 

At the close of the government’s case, the defense moved

for a judgment of acquittal and for a mistrial because the

admission of the evidence of the two girls’ heat stroke violated Federal Rules of Evidence 402, 403, or both. The court

denied both motions. As to the mistrial motion, the court

explained that the testimony in question “helps to explain the

circumstances of the other testimony of why [Gonzalez] left

to find water and to determine whether he was in fact assisting in bringing people into the United States.” Additionally,

the court didn’t “believe it was so prejudicial.” 

Gonzalez presented no defense; the jury convicted him.

Reiterating the evidentiary argument about the two girls’ heat

stroke (among other arguments), Gonzalez moved for a new

trial. The court denied the motion, once again finding that the

10498 UNITED STATES v. GONZALEZ-FLORES
probative value of the heat stroke testimony outweighed any

possible prejudicial value. 

The presentence report (PSR) recommended three sentence

enhancements for specific offense characteristics: (1) the

number of aliens smuggled; (2) the fact that Gonzalez brought

people into the desert with insufficient water, thereby recklessly creating a substantial risk of death or serious bodily

injury; and (3) the fact that the two girls suffered severe heat

distress, which constituted serious bodily injury sustained in

connection with the offense. Gonzalez objected to the last of

these enhancements, arguing that the PSR overstated the seriousness of the injuries and as a result added too many levels.

The district court accepted the base offense level from the

PSR, granted a two-level downward departure, and sentenced

Gonzalez to 33 months in prison (the low end of the Guideline range), a special assessment of $100, and two years

supervised release. 

Gonzalez timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291. 

II. ANALYSIS

A. Sufficiency of Evidence

[1] Gonzalez’s sufficiency-of-evidence challenge is easily

rejected, as it rests on the demonstrably erroneous premise

that none of the videotaped depositions that formed the backbone of the prosecution’s case was properly admitted into evidence. The record flatly contradicts Gonzalez’s claim: the

trial minutes and the transcript of the trial reveal that all three

tapes were admitted. Gonzalez does not argue, nor could he

plausibly, that the videotaped depositions themselves did not

provide sufficient evidence to sustain his conviction. Gonzalez’s sufficiency-of-evidence challenge must fail. 

UNITED STATES v. GONZALEZ-FLORES 10499
B. Evidentiary Error

Gonzalez argues that the admission of testimony about the

heat stroke suffered by the two girls violated several provisions of the Federal Rules of Evidence. Because we conclude

that the evidence should have been excluded under Rule 403,

which prohibits evidence whose “probative value is substantially outweighed by the danger of unfair prejudice,” we need

not discuss the other rules Gonzalez cites. However, because

we determine that the admission of the unduly prejudicial testimony was harmless, we affirm Gonzalez’s conviction. 

1. Rule 403

[2] A trial court’s determination that the prejudicial effect

of particular evidence did not substantially outweigh its probative value under Federal Rule of Evidence 403 is reviewed

for an abuse of discretion. United States v. Plancarte-Alvarez,

366 F.3d 1058, 1062 (9th Cir. 2004). (As to a criminal defendant, “unfair prejudice” refers to “the capacity of some concededly relevant evidence to lure the factfinder into declaring

guilt on a ground different from proof specific to the offense

charged.” Old Chief v. United States, 519 U.S. 172, 180

(1997). In other words, unfairly prejudicial evidence is that

having “an undue tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.” Id. (citation and internal quotation marks omitted). 

[3] The probative value of evidence against a defendant is

low where the evidence does not go to an element of the

charge. See United States v. Ellis, 147 F.3d 1131, 1135 (9th

Cir. 1998); United States v. Arambula-Ruiz, 987 F.2d 599,

604-05 (9th Cir. 1993). In this case, the government charged

Gonzalez with violating 8 U.S.C. § 1324(a)(1)(A)(i), a crime

with the following elements:

First, the defendant brought a person who was an

alien into the United States at a place other than a

10500 UNITED STATES v. GONZALEZ-FLORES
designated port of entry or at a place other than as

designated by a United States immigration official;

Second, the defendant knew that the person was an

alien; and 

Third, the defendant acted with the intent to violate

the United States immigration laws by assisting that

person to enter the United States at a time or place

other than as designated by a United States immigration official or to otherwise elude United States

immigration officials. 

Ninth Circuit Model Criminal Jury Instructions 9.1 (2003). As

a logical matter, the fact that two girls in Gonzalez’s group

suffered heat stroke does not affect the probability (1) that

Gonzalez brought aliens into the United States other than at

a recognized port of entry, (2) that Gonzalez knew they were

aliens, or (3) that Gonzalez intended to violate U.S. immigration law by bringing them in. The heat stroke is a mere detail

in the story of the offense. The district court specifically ruled

that the indictment’s reference to the girls’ injuries was surplusage because it was an issue relevant to sentencing rather

than an element of the offense. We agree. Because testimony

about the girls’ heat stroke does not go to any of the elements

of the crime with which Gonzalez was charged, we must consider its probative value low. Ellis, 147 F.3d at 1135;

Arambula-Ruiz, 987 F.2d at 604-05. 

[4] “Where the evidence is of very slight (if any) probative

value, it’s an abuse of discretion to admit it if there’s even a

modest likelihood of unfair prejudice or a small risk of misleading the jury.” United States v. Hitt, 981 F.2d 422, 424 (9th

Cir. 1992). Though the prosecution did not devote a great deal

of time to the girls’ heat stroke, the testimony presented certainly could have prejudiced Gonzalez unfairly. The border

agent’s description of the young age and dire condition of the

two girls — both of whom needed to be flown to a hospital

UNITED STATES v. GONZALEZ-FLORES 10501
and one of whom required resuscitation by rescue breathing

— very well could have triggered an emotional response from

the jury members, who were likely to be sympathetic to the

girls and consequently want to punish the man who caused

their heat stroke by bringing them into the desert with insufficient water. Moreover, the prosecution’s closing argument

drove home to the jury the connection, implicit from the testimony, between the actions of Gonzalez and the injuries to the

girls:

[T]he defendant is the one who told the members of

the group how much water to bring to try to walk

across 25 miles of desert in the summer heat in Arizona. That was perhaps the second most important

decision they would have to make other than who

was going to lead them: how much water. You can’t

survive without water. And the defendant, as the

leader of the group, told them how much water they

would need. He was wrong, but he’s the one who

told them how much to bring. 

. . . 

There were people in distress. He was responsible. 

We therefore find at least a “modest likelihood of unfair prejudice.” Hitt, 981 F.2d at 424. 

[5] The evidence about the two girls’ heat stroke therefore

had “an undue tendency to suggest decision on an improper

basis.” Old Chief, 519 U.S. at 180 (citation and internal quotation marks omitted). The likelihood of unfair prejudice was

high enough to outweigh the minimal proabative value of this

evidence; therefore its admission was an abuse of discretion

under Rule 403. 

10502 UNITED STATES v. GONZALEZ-FLORES
2. Harmless Error

Where we discover an error not of constitutional magnitude, “[w]e must reverse unless there is a ‘fair assurance’ of

harmlessness or, stated otherwise, unless it is more probable

than not that the error did not materially affect the verdict.”

United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997)

(en banc) (citation omitted). The burden to show the harmlessness of the error is on the government, and in the rare case

in which we find ourselves in equipoise as to the harmlessness

of the error, reversal is required. See United States v. Seschillie, 310 F.3d 1208, 1214-16 (9th Cir. 2002).3

3

In spite of our en banc decision in Morales, we find in our case law

a handful of stray passages reciting the harmless-error rule in an inartful

fashion that reverses the presumptions delineated in Morales by conditioning reversal on a showing that the non-constitutional error more likely

than not affected the verdict rather than requiring reversal unless the error

more likely than not did not affect the verdict. See, e.g., United States v.

Verduzco, 373 F.3d 1022, 1032 n.6 (9th Cir. 2004); United States v. Pang,

362 F.3d 1187, 1192 (9th Cir. 2004). Similar distortions have plagued our

precedents concerning harmless error in the civil context. See Obrey v.

Johnson, 400 F.3d 691, 699 (9th Cir. 2005) (observing that “[i]n a somewhat contradictory fashion, . . . we have formulated two variations of the

test for prejudice in civil cases”). 

Fortunately, two fairly recent opinions, one in the criminal context and

one in the civil context, have thoughtfully considered the nature of the

harmless-error inquiry and confirmed that an error presumptively requires

reversal and the burden is on the government to demonstrate otherwise by

showing that the error was more probably than not harmless. See Obrey,

400 F.3d at 699-701; Seschillie, 310 F.3d at 1214-16. In light of the extensive consideration and forceful answers these decisions have given to the

harmless-error question, we feel we are on safe ground in adhering to the

position set forth by our en banc court in Morales (and generally followed

in our case law) and treating as inadvertent the contrary formulations set

out in the following cases since Morales: United States v. Bussell, Nos.

02-50495 & 02-50528, 2005 WL 1620313, at *9 (9th Cir. July 12, 2005);

Verduzco, 373 F.3d at 1032 n.6; Pang, 362 F.3d at 1192; United States v.

Hanna, 293 F.3d 1080, 1085 (9th Cir. 2002); United States v. Nguyen, 284

F.3d 1086, 1089 (9th Cir. 2002); United States v. Angwin, 271 F.3d 786,

798 (9th Cir. 2001); United States v. Jimenez Recio, 258 F.3d 1069, 1087

(9th Cir. 2001); United States v. Edwards, 235 F.3d 1173, 1178 (9th Cir.

2000) (per curiam); United States v. Ciccone, 219 F.3d 1078, 1082 (9th

Cir. 2000); United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000);

United States v. Hanley, 190 F.3d 1017, 1028 (9th Cir. 1999); United

States v. Ramirez, 176 F.3d 1179, 1182 (9th Cir. 1999). 

UNITED STATES v. GONZALEZ-FLORES 10503
[6] In this case, the government advances no argument that

the evidentiary error was harmless.4 Usually when the government fails to argue harmlessness, we deem the issue waived

and do not consider the harmlessness of any errors we find.

See, e.g., United States v. Varela-Rivera, 279 F.3d 1174, 1180

(9th Cir. 2002); United States v. Vallejo, 237 F.3d 1008, 1026

(9th Cir. 2001), amended by 246 F.3d 1150. This approach

makes perfect sense in light of the nature of the harmlesserror inquiry: it is the government’s burden to establish harmlessness, and it cannot expect us to shoulder that burden for

it. 

[7] However, we recognize that no interest is served — and

substantial time and resources are wasted — by reversal in

those unusual cases in which the harmlessness of any error is

clear beyond serious debate and further proceedings are certain to replicate the original result. Fortunately, our precedents

do not foreclose the position that an appellate court’s sua

sponte consideration of harmless error is appropriate on occasions of this type. 

[8] Several of our sister circuits have developed a useful

approach for identifying those extraordinary cases in which an

appellate court should sua sponte consider the harmlessness of

an error it has identified. In an order denying a petition for

rehearing in United States v. Giovannetti, 928 F.2d 225 (7th

Cir. 1991) (per curiam order), the Seventh Circuit considered

the harmless-error waiver question in some detail. The court

recognized that requiring courts to consider harmless error

even where the government has not argued it would be burdensome to reviewing courts, which would be obligated to

search through large records without guidance from the par4Although the government mentions that a harmless error analysis

applies, it makes no argument on this score nor advances any theory about

how any errors here were harmless. “Issues raised in a brief which are not

supported by argument are deemed abandoned.” Kohler v. Inter-Tel Technologies, 244 F.3d 1167, 1182 (9th Cir. 2001). 

10504 UNITED STATES v. GONZALEZ-FLORES
ties, and could encourage “salami tactics” by the government,

which could focus its initial briefing exclusively on whether

error has occurred and if it loses, petition for rehearing on the

basis of harmless error. Id. at 226. However, the court also

took note of the potential costs to third parties and to the system brought about by needless relitigation of cases in which

the error did not make any difference. Id. at 226-27. Balancing these considerations, the court adopted the following rule:

“[W]e have discretion to overlook a failure to argue harmlessness, and in deciding whether to exercise that discretion the

controlling considerations are the length and complexity of

the record, whether the harmlessness of the error or errors

found is certain or debatable, and whether a reversal will

result in protracted, costly, and ultimately futile proceedings

in the district court.” Id. at 227. Several circuits have followed

or approvingly cited Giovannetti. See United States v. TorresOrtega, 184 F.3d 1128, 1136 (10th Cir. 1999); United States

v. McLaughlin, 126 F.3d 130, 135 (3d Cir. 1997); United

States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997); Horsley

v. Alabama, 45 F.3d 1486, 1492 n.10 (11th Cir. 1995); Lufkins v. Leapley, 965 F.2d 1477, 1481-82 (8th Cir. 1992);

United States v. Pryce, 938 F.2d 1343, 1347-48 (D.C. Cir.

1991) (opinion of Williams, J., announcing the judgment of

the panel); see also United States v. Dolah, 245 F.3d 98, 107

(2d Cir. 2001) (“We have discretion to consider the harmlessness of an alleged error even though the Government has not

argued this line of defense.”), abrogated on other grounds by

Crawford v. Washington, 541 U.S. 36, 64 (2004); cf. United

States v. Rodriguez-Preciado, 399 F.3d 1118, 1142-43 (9th

Cir. 2005) (Berzon, J., dissenting in part) (touting the Giovannetti approach while noting that the Ninth Circuit has yet to

consider it). 

[9] We find the Seventh Circuit’s analysis persuasive, and

we agree that the government’s failure to argue that an error

is harmless does not categorically preclude our consideration

of that question. We also find helpful the three factors — the

length and complexity of the record, whether the harmlessUNITED STATES v. GONZALEZ-FLORES 10505
ness of an error is certain or debatable, and the futility and

costliness of reversal and further litigation — that the Seventh

Circuit considers in determining when it is appropriate to recognize an error’s harmlessness notwithstanding the government’s failure to argue it. At the same time, we are

particularly sensitive to the Seventh Circuit’s concerns that

sua sponte consideration of harmlessness will often burden

reviewing courts and give the government too many chances

to argue harmless error. Even more troubling, the practice

may unfairly tilt the scales of justice by authorizing courts to

construct the government’s best arguments for it without providing the defendant with a chance to respond. See, e.g.,

Stuard v. Stewart, 401 F.3d 1064, 1067 (9th Cir. 2005). 

[10] Mindful of these risks, we believe that while all three

Giovannetti factors are relevant to a court’s determination of

whether to engage in harmless-error review on its own initiative, the second factor — the court’s certainty as to the harmlessness of the error — is of particular importance. See

Rodriguez-Preciado, 399 F.3d at 1143 (Berzon, J., dissenting

in part) (“[T]he touchstone of whether courts should reach

harmless error sua sponte is the extent to which the harmlessness of the error is open to question.”); Pryce, 938 F.2d at

1348 (opinion of Williams, J., announcing the judgment of the

panel) (“Where the government does not raise the harmless

error issue, I would deem errors ‘harmless’ only where satisfaction of that standard is beyond serious debate.” (emphasis

in original)); cf. Lufkins, 965 F.2d at 1482 (recognizing harmless error sua sponte where “the finding of harmlessness is

beyond reasonable argument”). If the harmlessness of the

error is at all debatable, prudence and fairness to the defendant counsel against deeming that error harmless without the

benefit of the parties’ debate. We agree with the observation

of our colleague from the D.C. Circuit that “where the case

is at all close, defense counsel’s lack of opportunity to answer

potential harmless error arguments may lead the court to miss

an angle that would have shown the error to have been prejudicial.” Pryce, 938 F.2d at 1347 (opinion of Williams, J.,

10506 UNITED STATES v. GONZALEZ-FLORES
announcing the judgment of the panel). We therefore conclude that sua sponte recognition of an error’s harmlessness

is appropriate only where the harmlessness of the error is not

reasonably debatable. Since we find this condition satisfied in

Gonzalez’s case, we hold that the evidentiary error we have

identified was harmless and affirm the conviction. 

[11] The record here is small and simple, and we have no

difficulty concluding that allowing the jury to hear testimony

about the girls’ heat stroke was undeniably harmless and that

reversal and further litigation would be futile. Gonzalez’s trial

lasted less than two days, and the evidence against him was

overwhelming. Three witnesses who were part of the group

Gonzalez led across the desert testified that Gonzalez did

exactly what he was charged with doing. The elements of the

crime were easily established. Gonzalez put on no defense. 

[12] We have no doubt that the jury would have convicted

Gonzalez notwithstanding the unduly prejudicial evidence

pertaining to the girls’ heat stroke. The record here does not

merely provide a “ ‘fair assurance’ of harmlessness,” Morales, 108 F.3d at 1040 (citation omitted); it leads us inexorably

to the conclusion that the error’s harmlessness is beyond serious debate. If we were to send this case back for retrial, the

government would play the same videotaped depositions for

the jury, and the jury would reach the same verdict. We therefore hold that the admission of testimony concerning the heat

stroke was harmless, and we affirm Gonzalez’s conviction. 

C. Sentencing Issues

Gonzalez also claims his sentence is unconstitutional under

United States v. Booker, 125 S. Ct. 738 (2005). Here, Gonzalez received three sentence enhancements based on facts

found by the judge under a standard less than beyond a reasonable doubt. These facts were: (1) the number of aliens

smuggled; (2) the fact that Gonzalez brought people into the

desert with insufficient water, thereby recklessly creating a

UNITED STATES v. GONZALEZ-FLORES 10507
substantial risk of death or serious bodily injury; and (3) the

fact that the two girls suffered severe heat distress, which constituted serious bodily injury sustained in connection with the

offense. 

The government claims that Gonzalez waived his Sixth

Amendment rights because the government offered to present

the fact of the heat stroke to the jury and Gonzalez’s lawyer

rejected this offer by urging the court to strike the matter from

the indictment in an (ultimately unsuccessful) attempt to keep

the girls’ heat stroke away from the jury. The government

misapprehends the strict standards for waiver of constitutional

rights generally and for the waiver of the jury trial right in

particular. 

We have recently summarized the principles governing the

waiver of constitutional rights:

Waiver is the intentional relinquishment or abandonment of a known right. Courts indulge every reasonable presumption against waiver of fundamental

constitutional rights and do not presume acquiescence in the loss of fundamental rights. Therefore,

presuming waiver from a silent record is impermissible. 

United States v. Hamilton, 391 F.3d 1066, 1071 (9th Cir.

2004) (citations, internal quotation marks and source’s alteration marks omitted). 

[13] In particular, we have held that “[t]he right to a jury

trial may only be waived if the following four conditions are

met: (1) the waiver is in writing; (2) the government consents;

(3) the court accepts the waiver; and (4) the waiver is made

voluntarily, knowingly, and intelligently.” United States v.

Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997). To

ensure that a waiver is voluntary, knowing, and intelligent, the

district court should:

10508 UNITED STATES v. GONZALEZ-FLORES
inform the defendant that (1) twelve members of the

community compose a jury, (2) the defendant may

take part in jury selection, (3) a jury verdict must be

unanimous, and (4) the court alone decides guilt or

innocence if the defendant waives a jury trial. Furthermore, the district court should question the

defendant to ascertain whether the defendant understands the benefits and burdens of a jury trial and

freely chooses to waive a jury. 

Id. (citation omitted). Though we have declined “to impose an

absolute requirement of such a colloquy in every case,” id. at

1003, in its absence we will find a valid waiver of the jury

trial right only where there are strong indicia that the waiver

was voluntary, knowing, and intelligent. See, e.g., United

States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985) (finding

waiver of the jury trial right where the defendant discussed

the matter with his lawyer, told the court he wished to waive

the right, and executed a written waiver in the presence of the

court). 

[14] Such indicia are wholly absent from Gonzalez’s case.

The record provides no indication that Gonzalez himself had

considered the nature of the right the government claims his

lawyer waived, or had any idea that his lawyer was waiving

it, much less demonstrated an actual intent to abandon this

right. Gonzalez himself was entirely silent while his counsel

sought to exclude the fact of the two girls’ heat stroke from

the indictment — the act that the government contends

amounted to a waiver of the jury trial right. We will not presume waiver from a silent record. Hamilton, 391 F.3d at 1071.

Nor will we presume the waiver of one right based on the

assertion of another. See Hays v. Arave, 977 F.2d 475, 477-78

(9th Cir. 1992), overruled on other grounds, Rice v. Wood, 77

F.3d 1138, 1144 n.8 (9th Cir. 1996) (en banc). In the absence

of strong indicia that Gonzalez voluntarily, knowingly, and

intelligently waived his jury trial right, he is entitled to the full

UNITED STATES v. GONZALEZ-FLORES 10509
range of Sixth Amendment protection guaranteed under

United States v. Booker.

5

[15] Because Gonzalez’s sentence was enhanced under a

mandatory-guideline regime based on facts not admitted by

him or proved to a jury beyond a reasonable doubt, his Sixth

Amendment right to a jury trial was violated. Booker, 125

S. Ct. at 749-50. Although Gonzalez did not waive this right,

he did not raise the Sixth Amendment objection at sentencing.

We review unpreserved Booker violations for plain error.

United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005)

(en banc). Here, though there was error, and it was plain, the

third prong of the plain-error inquiry — whether the error

affected Gonzalez’s “substantial rights” — is in doubt,

because “it is not possible to reliably determine from the

record whether the sentence imposed would have been materially different had the district court known that the Guidelines

were advisory.” Id. at 1084. Therefore, in accordance with

United States v. Ameline, we remand so that the district court

may answer this question and, if necessary, resentence Gonzalez in a manner consistent with Booker and Ameline. See id.

at 1084-85. Gonzalez may, of course, opt out of such resentencing by promptly notifying the district court of his desire

to do so. Id. at 1084.

III. CONCLUSION

The evidence was sufficient to support the conviction. Testimony pertaining to the heat stroke suffered by two members

of the party Gonzalez led across the desert was unduly preju5Our analysis of the waiver question is unaffected by our recent decision in United States v. Cardenas, 405 F.3d 1046 (9th Cir. 2005), in which

we rejected a defendant’s claim that his waiver of the right to appeal his

sentence was rendered involuntary and unknowing by the Supreme

Court’s subsequent decision in Booker. Id. at 1048. Gonzalez’s claim is

not that the change in law retroactively undermined the voluntariness of

an otherwise-effective waiver; rather, he claims that he did not intend to

waive any right to begin with. 

10510 UNITED STATES v. GONZALEZ-FLORES
dicial, and the district court abused its discretion by admitting

it. However, from our review of this uncomplicated record,

we find it to be beyond debate that the error was harmless and

that reversal and retrial would be futile. Therefore we affirm

Gonzalez’s conviction. 

Gonzalez did not waive his Sixth Amendment rights when

his lawyer tried to keep evidence of the heat stroke away from

his jury. Although Gonzalez was sentenced in violation of the

Sixth Amendment, he did not object in the district court and

therefore we review for plain error. Because we cannot

answer the plain error question on this record, we remand in

accordance with United States v. Ameline. 

AFFIRMED IN PART; REMANDED.

UNITED STATES v. GONZALEZ-FLORES 10511