FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-30497 Plaintiff-Appellee,

D.C. No.

v.  CR 02-0374-23 JCC

ALBERTO MONZON,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Argued and Submitted

July 14, 2005—Seattle, Washington

Filed December 7, 2005

Before: A. Wallace Tashima, Richard A. Paez, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Tashima;

Dissent by Judge Callahan

15783
COUNSEL

Catherine L. Floit, Seattle, Washington, for the defendantappellant. 

John McKay, United States Attorney, and Douglas B. Whalley, Assistant United States Attorney, Seattle, Washington,

for the plaintiff-appellee. 

OPINION

TASHIMA, Circuit Judge: 

Alberto Monzon appeals his conviction for possession of a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c). Monzon contends that the district court

accepted his guilty plea in violation of Rule 11 of the Federal

Rules of Criminal Procedure and that the error affected his

substantial rights. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we reverse.

BACKGROUND

In November 2001, law enforcement officers began investigating a drug trafficking organization led by Juan GodinezVasquez. Through a court-authorized wiretap, officers determined that Monzon was involved with that organization. Federal agents executed a search warrant at Monzon’s residence.

Monzon was in bed at the time. The agents seized a loaded

9-millimeter semi-automatic handgun from under the bed15786 UNITED STATES v. MONZON
covers, $3,060 in cash from a coat in the closet, and 248.9

grams of heroin in an Enfamil baby formula can wrapped in

electrical tape from the closet shelf. 

Monzon was charged in three counts of a multi-count

indictment with: (1) Count 1, conspiracy to distribute cocaine,

heroin, and methamphetamine; (2) Count 20, possession of

heroin with intent to distribute, in violation of 21 U.S.C.

§ 812; and (3) Count 21, possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1). Count 21 alleged that Monzon “knowingly and

intentionally did possess a firearm, that is, a Pietro Beretta

9mm model 91 handgun, in furtherance of a drug trafficking

crime, that is, possession of heroin with intent to distribute, as

charged in Count 20, and conspiracy to distribute cocaine,

heroin, and methamphetamine, as charged in Count 1.” 

At one point, Monzon moved to have his counsel, Michael

Danko, discharged and to have his originally appointed counsel re-appointed. According to the motion, Monzon had twice

indicated that he intended to accept the government’s plea

offer, but the first time, changed his mind during the plea colloquy, and the second time, decided he was not going to enter

a plea upon arriving in court. The motion explained that communication between Monzon and Danko had broken down. At

the hearing on the motion, the court reasoned that, if the court

again permitted a change of counsel, the new attorney would

be unprepared for trial, which was scheduled to commence

the following week. It therefore denied Monzon’s request for

new counsel. 

Monzon then entered a guilty plea to Counts 20 and 21 of

the indictment: possession of heroin with intent to distribute,

and possession of a firearm in furtherance of a drug trafficking crime. Count 1, the conspiracy count, was dismissed. At

the plea hearing, conducted by a Magistrate Judge, Danko

explained that his latest discussions with Monzon had been

“amicable and complete” and that Monzon intended to go

UNITED STATES v. MONZON 15787
ahead with the guilty plea. The government summarized the

charges and penalties, stating that Count 20 carried a term of

imprisonment of not less than five and up to 40 years, and that

Count 21 required a term of imprisonment of not less than

five years, to be served consecutively. Monzon stated that he

understood the two charges and their maximum penalties. 

The Magistrate Judge advised Monzon that, if there were

a trial on Count 21, the government would be required to

prove that Monzon commited a drug trafficking offense and

that Monzon knowingly possessed a firearm in furtherance of

the drug trafficking offense. Monzon stated that he understood the elements of the offenses charged. The Magistrate

Judge then asked Monzon if he understood that by pleading

guilty, he would be giving up his right to require the government to prove those elements, and Monzon said that he did.

The Magistrate Judge asked, “Is that what you wish to do?”

Monzon replied, “Yes.” 

Next, the Magistrate Judge conducted a colloquy to determine whether Monzon agreed to the facts stated in the plea

agreement. The following exchange occurred between the

Magistrate Judge, Monzon, and Assistant United States Attorney Douglas Whalley: 

Court: Did they come into your house in the

nighttime or sometime on November 6

of 2002 and search your house? 

Defendant: Yes. 

Court: And at that time did they find in your

bedroom 248.9 grams of heroin? 

Defendant: Yes. 

Court: Did they also find a loaded Beretta,

nine-millimeter, semiautomatic hand15788 UNITED STATES v. MONZON
gun in the bed where you were sleeping? 

Defendant: Yes. 

Court: Did you in fact possess that firearm in

part to protect those drugs? 

Defendant: No. That’s not it. I just had it because

somebody sold it to me cheap. 

Court: Mr. Whalley, what would the government’s evidence show on the use of

the firearm in connection with the

offense? 

Whalley: Simply that he had it in his possession

in the bedroom with the drugs. That

phrase is more a legal conclusion than

it is a finding of fact, Your Honor, so

I’m willing to accept the plea without

item B, why he protected it, why he

possessed it. 

Court: Are you suggesting we strike that from

the plea agreement? 

Whalley: If the defendant does not admit it. 

Court: Mr. Monzon, why did you feel that

you needed or wanted to have a firearm? 

Defendant: Because I always liked them and they

sold it to me for cheap and, you know,

I just bought it. I didn’t buy it because

of the drugs. It doesn’t have anything

to do with that. 

UNITED STATES v. MONZON 15789
Court: Mr. Whalley, maybe we better strike

that. Any objection, Mr. Danko? 

Danko: No, Your Honor. 

Court: Mr. Monzon, is it true that the drugs

were in your bedroom and the gun was

also in your bedroom? 

Defendant: Yes. 

The plea agreement was then amended by deleting the sentence that stated: “(b) Defendant possessed the firearm in part

to protect the drugs.” As amended, the plea agreement’s statement of facts stated only: 

(a) On November 6, 2002, law enforcement agents

executed a search warrant at Defendant’s residence.

. . . In the bedroom, where Defendant was found

sleeping, agents recovered 248.9 grams of heroin.

Agents also recovered a loaded Beretta 9 mm semiautomatic handgun in the bed where Defendant was

sleeping. 

(c) The parties agree, and will recommend that the

Court find, that the amount of heroin involved in the

offense was 248.9 grams of heroin. 

Monzon then pled guilty to Counts 20 and 21. The Magistrate Judge found that Monzon’s guilty plea was knowing and

voluntary and was “supported by an independent basis in

fact,” and set a date for sentencing before the district court.

The district court entered an order accepting Monzon’s plea

and sentenced Monzon to a 120-month term of imprisonment

and four years of supervised release. This timely appeal followed. 

15790 UNITED STATES v. MONZON
STANDARD OF REVIEW

When a defendant fails to object to a district court’s

asserted Rule 11 error, our review is limited to plain error.

Fed. R. Crim. P. 52(a)-(b); United States v. Dominguez

Benitez, 124 S. Ct. 2333, 2338 (2004). In assessing the effect

of Rule 11 error, we must look to the entire record and not to

the plea proceedings alone. The error requires reversal only if

it affected the defendant’s substantial rights. Id. We exercise

our discretion to correct the error only if it “seriously affects

the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993).

ANALYSIS

On appeal, Monzon first contends that the district court violated Rule 11 of the Federal Rules of Criminal Procedure by

failing to establish a factual basis for his guilty plea to possession of a gun in furtherance of a drug trafficking crime and

in failing to ensure that he understood the charge against him

and that the plea was voluntary. Monzon further argues that

the Rule 11 error is not harmless because it affected his substantial rights. Second, Monzon contends that, in the absence

of a conviction for possession of a gun in furtherance of a

drug trafficking crime, he would be eligible for a safety valve

reduction in his sentence pursuant to 18 U.S.C. § 3553(f). 

I. Rule 11 Error

[1] The government concedes that the district court erred

by failing to determine that there was a factual basis for Monzon’s guilty plea to possession of a gun in furtherance of a

drug trafficking crime.1 Because the government concedes

1

In its brief, the government states: 

Count 21 charged Monzon with possession of a firearm in furtherance of a drug trafficking crime. The modified Plea AgreeUNITED STATES v. MONZON 15791
that the district court’s acceptance of Monzon’s plea in violation of Rule 11 was plain error, we proceed to the issue of

whether the error affected Monzon’s substantial rights. 

To obtain reversal of a conviction based on Rule 11 error,

the defendant must show, based on the entire record, that the

error affected his substantial rights. Dominguez Benitez, 124

S. Ct. at 2338-39. The defendant “must show a reasonable

probability that, but for the error, he would not have entered

the plea.”

2

Id. at 2340. “A defendant must thus satisfy the

judgment of the reviewing court, informed by the entire

record, that the probability of a different result is sufficient to

undermine confidence in the outcome of the proceeding.” Id.

(internal quotation marks and citations omitted). “The

reasonable-probability standard is not the same as, and should

not be confused with, a requirement that a defendant prove by

a preponderance of the evidence that but for error things

would have been different.” Id. at 2340 n.9. 

[2] In Dominguez Benitez, the Court explained that, to

determine whether the Rule 11 error affected the defendant’s

substantial rights, we should consider “record evidence tendment did not provide a complete factual bases in support of

Monzon’s plea of guilty to Count 21, although it came very close

through Monzon’s admissions that he possessed one-quarter kilogram of heroin in his bedroom, and slept with a 9 mm Berretta

sem-automatic handgun in his bed in the same room. ER 34-35.

The error here is plain. However, the court’s failure to meet this

Rule 11(a)(3) requirement does not require reversal of the conviction by entitling Monzon to withdraw his plea. 

2Prior to the Supreme Court’s decision in Dominguez Benitez, we

required defendants seeking reversal based on a Rule 11 error to prove

only “that the court’s error was not minor or technical and that he did not

understand the rights at issue when he entered his guilty plea.” See 124

S. Ct. at 2338 (citing United States v. Dominguez Benitez, 310 F.3d 1221,

1225 (9th Cir. 2000)). In Dominguez Benitez, the Supreme Court overruled that standard and held that the reasonable probability standard

applies. Id. at 2341-42. 

15792 UNITED STATES v. MONZON
ing to show that a misunderstanding was inconsequential to a

defendant’s decision, or evidence indicating the relative significance of other facts that may have borne on his choice

regardless of any Rule 11 error.” Id. at 2341 (citation omitted). 

[3] The inquiry shall include “the overall strength of the

Government’s case and any possible defenses that appear

from the record.” Id. The Court further explained: 

The point of the question is not to second-guess a

defendant’s actual decision; if it is reasonably probable he would have gone to trial absent the error, it is

no matter that the choice may have been foolish. The

point, rather, is to enquire whether the omitted warning would have made the difference required by the

standard of reasonable probability. . . . 

Id.3

[4] Unlike in Dominguez Benitez, where the Court reasoned

3We have applied Dominguez Benitez only once before in a published

opinion. In United States v. Arellano-Gallegos, 387 F.3d 794 (9th Cir.

2004), the defendant challenged the waiver of appeal provision in his plea

agreement. Id. at 796. We concluded that the district court violated Rule

11 by failing to ascertain whether the defendant’s waiver of appeal was

knowing and voluntary before acceptance of the plea. Id. at 797. We also

cited to Dominguez Benitez and reasoned that “there is no evidence in the

record that would demonstrate that Arellano knew he was waiving the

right to appeal his sentence.” Id. We observed that “[w]hat is in the record

demonstrates that the magistrate judge and the form used by the district

court omitted any reference to the right to appeal the sentence.” Id. We

also reasoned that, “[b]ecause this was not a technical violation of Rule

11, but rather a wholesale omission, and there is nothing elsewhere in the

record to indicate that Arellano understood the right to appeal his sentence, his substantial rights were affected.” Id. We have not heretofore

applied Dominguez Benitez in a Rule 11 context in which a defendant contends that he was not sufficiently apprised of the elements of the offense

to which he is pleading guilty. 

UNITED STATES v. MONZON 15793
that “it is hard to see here how the warning could have had

an effect on Dominguez’s assessment of his strategic position,” 124 S. Ct. at 2341, the omission here likely affected

Monzon’s assessment of his strategic position. We have held

that “[e]vidence that a defendant merely possessed a firearm

at a drug trafficking crime scene, without proof that the

weapon furthered an independent drug trafficking offense, is

insufficient to support a conviction under § 924(c).” United

States v. Krouse, 370 F.3d 965, 967 (9th Cir. 2004). The “in

furtherance” element of the offense “turns on the intent of the

defendant.” Id. Conviction requires “proof that the defendant

possessed the weapon to promote or facilitate the underlying

crime.” Id. See also United States v. Mann, 389 F.3d 869, 880

(9th Cir. 2004) (observing that “Congress has not made mere

possession, when it occurs contemporaneously with drug

manufacture, a strict liability crime”). 

[5] Here, once amended, the statement of facts in the plea

agreement provided only that agents found 248.9 grams of

heroin in the bedroom where Monzon was sleeping and a

loaded gun in Monzon’s bed. The plea agreement included no

statement of Monzon’s intent in possessing the gun. Indeed,

Monzon specifically objected when the district court asked

him if he in fact possessed the gun in part to protect the drugs

found in his bedroom: “No. That’s not it. I just had it because

somebody sold it to me cheap.” When asked to explain why

he had the gun, Monzon explained, “Because I always liked

them and they sold it to me for cheap and, you know, I just

bought it. I didn’t buy it because of the drugs. It doesn’t have

anything to do with that.” 

[6] Under Krouse, the mere fact of Monzon’s possession of

the gun at the scene of the drug trafficking crime is insufficient to support the “in furtherance” element. See Krouse, 370

F.3d at 967. Unlike in Dominguez Benitez, where the defendant’s plea to drug possession was supported by evidence of

a controlled drug sale to an informant and a confession, see

124 S. Ct. at 2341, it is unclear whether the government

15794 UNITED STATES v. MONZON
would have been able to prove the “in furtherance” element

beyond a reasonable doubt at trial, especially given Monzon’s

explanation of his reason for possessing the gun. And, unlike

in Dominguez Benitez, where the Court observed that, given

the evidence, “one can fairly ask a defendant seeking to withdraw his plea what he might ever have thought he could gain

by going to trial,” id., it appears that Monzon might have been

able to avoid conviction on the § 924(c) charge had he gone

to trial. 

Further, it appears that Monzon was unaware that the

amended statement of facts he agreed to was insufficient to

support the “in furtherance” element of 18 U.S.C. § 924(c).

The Magistrate Judge did not inform Monzon that the statement of facts did not demonstrate all the elements of the

§ 924(c) charge, and it appears that Dominguez’s counsel, in

recommending that Monzon accept the plea agreement, also

was unaware of the insufficiency of the factual basis. Thus,

neither Monzon nor his attorney, nor indeed the Assistant

United States Attorney or the district court, understood — as

the government now concedes — that there was no factual

basis for Monzon’s plea and that the government’s evidence,

if presented at trial would show “[s]imply that he had [the

gun] in his possession in the bedroom with the drugs.” As in

Arellano-Gallegos, 387 F.3d at 797, “there is nothing elsewhere in the record” to indicate that Monzon understood that

the evidence might not support the § 924(c) charge. 

[7] Given the evidence in the record of Monzon’s prior

equivocation in deciding whether to accept the plea agreement, and given the absence of evidence showing that Monzon intended to possess the gun “in furtherance” of his drug

trafficking crime, it is reasonably probable that Monzon

would have gone to trial on the § 924(c) charge absent the

Rule 11 error. A review of the entire record shows a reasonable probability of a different result, “sufficient to undermine

confidence in the outcome of the proceeding.” Dominguez

Benitez, 124 S. Ct. at 2340. The Rule 11 error here “seriously

UNITED STATES v. MONZON 15795
affects the fairness, integrity or public reputation of judicial

proceedings.” Olano, 507 U.S. at 732. We therefore reverse

Monzon’s conviction for violation of 18 U.S.C. § 924(c) and

remand with instructions to vacate Monzon’s plea and sentence, and to afford Monzon the opportunity to enter a new

plea. 

2. Safety Valve Reduction in Sentencing

Monzon contends that, absent a conviction for possession

of a gun in furtherance of a drug trafficking crime, he would

be eligible for a safety valve reduction in his sentence pursuant to 18 U.S.C. § 3553(f). Because Monzon was convicted of

the gun charge, he did not raise, and the district court did not

consider, application of the safety valve provision under 18

U.S.C. § 3553. We therefore decline to reach this issue. Upon

remand, the district court will have the opportunity to consider in the first instance whether to apply the safety valve

provision. 

CONCLUSION

The district court’s Rule 11 error affected Monzon’s substantial rights because there is a reasonable probability that,

absent the error, Monzon would not have pleaded guilty to the

§ 924(c) charge. The judgment of conviction on Count 21 is

reversed and the case is remanded to the district court for further proceedings consistent with this opinion. Further,

because the sentencing court should “be free to consider any

matters relevant to sentencing,” we vacate the sentence as to

Count 20 and remand that count for resentencing. See United

States v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en

banc). 

REVERSED and REMANDED.

15796 UNITED STATES v. MONZON
CALLAHAN, Circuit Judge, dissenting: 

I respectfully dissent. 

The majority properly frames the issue before us. In order

to obtain a reversal of conviction, Monzon must show a reasonable probability that but for the district court’s Rule 11

error, he would not have pled guilty to Count 21. Dominguez

Benitez, 124 S. Ct. at 2338-39. Based on Monzon’s prior

equivocation in accepting the plea agreement and the absence

of evidence to support the “in furtherance” element of Count

21, the majority concludes it is reasonably probable that Monzon would have gone to trial on Count 21 and, therefore, finds

reversible error. I disagree with the majority’s premises and

conclusion. 

The majority assumes that if Monzon had wanted to proceed to trial on Count 21, the government would have allowed

him to do so without disturbing the dismissal of Count One

and his guilty plea to Count 20. This simply ignores the nature

of the plea-bargain process. In exchange for Monzon’s guilty

plea to both Counts 20 and 21, the government dismissed

Count One, which carried a ten year mandatory sentence. A

conviction on all three counts would have resulted in a mandatory minimum prison sentence of 15 years. Thus, by entering a plea agreement, Monzon avoided the possibility of five

additional years in prison if convicted on Count One, while

the government secured a conviction on Counts 20 and 21. It

is simply unreasonable to assume that the government would

have agreed to dismiss Count One in exchange for just one

guilty plea (Count 20), and then proceed to trial on Count 21

alone. 

Moreover, although Monzon claimed that but for the conviction on Count 21 he would be eligible for a safety-valve

reduction in his sentence, his admitted possession of a firearm

in conjunction with the drug offense arguably prevents him

from qualifying. Title 18 U.S.C. § 3553; United States v. NelUNITED STATES v. MONZON 15797
son, 222 F.3d 545 (9th Cir. 2000); U.S. SENTENCING GUIDELINES MANUAL § 5C1.2(a)(2). In my view, this considerably

weakens Monzon’s claim that he suffered prejudice as a result

of the district court’s Rule 11 error. Given these considerations, I would not find reversible error in this case. 

Even if there were reversible error, the appropriate remedy

would be to place the parties in the same position that they

were in before entering the original plea agreement. Thus,

Monzon should be allowed to withdraw his plea in its entirety

and either proceed to trial on all three counts or attempt to

negotiate a new plea agreement with the government. The

majority’s remedy effectively dismantles the plea agreement,

parses out for remand the conviction on Count 21 and the sentence on Count 20, and leaves intact the dismissal of Count

One. This permits Monzon to enjoy the benefits of the original plea agreement, while forcing the government to renegotiate new terms from a weaker bargaining position. I do

not read Dominguez Benitez to require this sort of windfall

remedy for plain error under Rule 11. 

15798 UNITED STATES v. MONZON