FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 08-10396

v.  D.C. No.

ABIMAEL 4:08-cr-00271-CKJ ROBLERO-SOLIS,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 08-10397

v.  D.C. No.

4:08-cr-00272-CKJ JANET ROBLERO-PEREZ,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 08-10466

v.  D.C. No.

JORGE ROSALES-VARGAS, 4:08-cr-00270-DCB

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 08-10509

v.  D.C. No.

MIGUEL ZARAZUA-PICHARDO, 4:08-cr-00306-RCC

Defendant-Appellant. 

15697
UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 08-10512

v.  D.C. No.

JOSE VAZQUEZ-MORALES, 4:08-cr-00312-RCC

Defendant-Appellant. 

UNITED STATES OF AMERICA,  No. 08-10543

Plaintiff-Appellant, D.C. No.

v.  4:08-CR-00311-

FRZ-1 GUMERCINDO MARTINEZ-CARRIZOSA,

Defendant-Appellee. OPINION 

Appeals from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

David C. Bury, District Judge, Presiding

Raner C. Collins, District Judge, Presiding

Frank R. Zapata, District Judge, Presiding

Argued and Submitted

November 2, 2009—San Francisco, California

Filed December 2, 2009

Before: John T. Noonan and William A. Fletcher,

Circuit Judges, and Thomas Duffy,* District Judge.

Opinion by Judge Noonan

*The Honorable Kevin Thomas Duffy, United States District Judge for

the Southern District of New York, sitting by designation. 

15698 UNITED STATES v. ROBLERO-SOLIS
COUNSEL

Jason Hannan, Assistant Federal Public Defender, Tucson,

Arizona, for the defendants-appellants-appellees.

Robert L. Miskell, Assistant United States Attorney, Tucson,

Arizona, for the plaintiff-appellee-appellant.

15700 UNITED STATES v. ROBLERO-SOLIS
OPINION

NOONAN, Circuit Judge:

To accommodate the enormous number of prosecutions for

illegal entry into the United States, the district court for the

District of Arizona (Tucson) has adopted a procedure for the

taking of pleas en masse intended to preserve the rudiments

of Fed. R. Crim. P. 11 and the constitution. We were informed

by the government in this case that one magistrate judge is

assigned each week full time to the handling of these cases

and that in twelve months’ time the court has handled 25,000.

The procedure has been in practice for at least two years and

is apparently followed in several other federal courts whose

districts border on Mexico.

The problem generated by the massive caseload on the

court understandably led the court to adopt a shortcut.

Abstractly considered, the shortcut is not only understandable

but reasonable. The shortcut, however, does not comply with

Rule 11. We cannot permit this rule to be disregarded in the

name of efficiency nor to be violated because it is too

demanding for a district court to observe. We act within a system maintained by the rules of procedure. We cannot dispense

with the rules without setting a precedent subversive of the

structure. Accordingly, on this challenge by an intrepid federal public defender to the Tucson court’s taking of pleas en

masse, we hold the procedure to be contrary to Rule 11. We

then assess the harm to the substantial rights of the six defendants before us on this appeal.

FACTS

Abimael Roblero-Solis (Roblero-S.), age about 19, a citizen

of Mexico, was apprehended by the United States Border

Patrol on March 3, 2008 inside of the United States without

documents authorizing his entry into the United States.

UNITED STATES v. ROBLERO-SOLIS 15701
Janet Roblero-Perez (Roblero-P.), age about 19, is another

citizen of Mexico, apprehended on March 3, 2008 by the Border Patrol inside of the United States without documents.

Jose Vasquez-Morales (Vasquez), about 26, is a citizen of

Mexico, also arrested on March 3, 2008 by the Border Patrol

inside of the United States without documents.

Gumercindo Martinez-Carrizosa (Martinez), age about 26,

is another Mexican citizen without documents, arrested by the

Border Patrol on March 3, 2008 inside of the United States.

Jorge Rosales-Vargas (Rosales), age about 24, is another

citizen of Mexico, apprehended without documents by the

Border Patrol inside of the United States, March 3, 2008.

Miguel Zarazua-Pichardo (Zarazua), age about 29, is a citizen of Mexico, also apprehended by the Border Patrol on

March 3, 2008 inside of the United States without documentation.

PROCEEDINGS

March 5, 2008. Roblero-P, Robero-S, Martinez and

Vasquez appeared before Magistrate Judge Jennifer Guerin.

They were represented by Jason Hannan, Assistant Federal

Public Defender. Forty-three other defendants facing a similar

charge were present and had guilty pleas accepted. The proceedings in which they were participants are conveniently set

out by Tucson District Judge David G. Bury in one of the

decisions here on appeal:

The Arizona Denial Prosecution Initiative (ADPI,

a.k.a. Operation Streamline) is used by the United

States Border Patrol to bring 50 to 100 people per

day before a United States Magistrate Judge for an

initial appearance to explain the charges against

them and their rights, accept any guilty pleas, and

15702 UNITED STATES v. ROBLERO-SOLIS
sentence them. The proceedings before the Magistrate Judge pertain to petty misdemeanor violations

under 8 U.S.C. § 1325 for entering the country illegally and are conducted en masse, except for individually taking role and the actual guilty pleas.

The court asked defense counsel if all of their clients “wish

to plead guilty this afternoon,” and the record reflects “general ‘yes’ answers.” The court then asked if there was “any

objection to conducting these proceedings as a group.” Hannan stated:

Your Honor, I would ask that the court determine

that each of them has understood their rights, the factual basis has been inquired of each of them individually, and that each of them has an opportunity to

speak, to be addressed by the court personally and to

allocute to the court with defense counsel.

THE COURT: So you have no objection to the

group advisement is what I understand?

HANNAN: Correct, as long as the court would

inquire as to each individually if they understood

their rights and the waiver (unintelligible).

THE COURT: Thank you.

The court advised defendants collectively of the procedure

which it intended to use to take the pleas as a group:

THE COURT: I’m going to be advising you and

informing you of your rights. If at any time you

don’t understand what I’m saying or if you cannot

hear me or hear the interpreter, I ask that you stand

and that will give us the opportunity to make sure

that the hearing apparatus is working correctly and

also to clarify any questions that you might have. If

UNITED STATES v. ROBLERO-SOLIS 15703
I direct a question to you as a group, then I ask that

each one of you answers that question out loud

loudly so that I can see and hear your response. If I

cannot hear a response, then I will not be able to

accept your guilty plea. Does everyone understand

these directions?

The record reports a “General ‘yes’ response.”

The court then advised the group of their rights to remain

silent and to be represented by an attorney and noted that each

defendant had an opportunity to meet with his attorney in the

morning. The court then asked anyone who did not know the

charges against him to stand. The court noted for the record

that “no one is standing.”

The court advised the defendants of the consequences of

their plea. After each statement, the court asked defendants if

they understood, and each time the interpreter relayed a “General ‘yes’ response.” The court asked “If anyone has any

questions about what I’ve advised so far, please stand at this

time.” The court noted for the record that no one was standing.

The court similarly advised defendants of their rights to a

trial and their rights at trial. After these advisements, the court

asked if the defendants understood “your right to have a trial

and what would be involved in that trial.” The interpreter conveyed a “General ‘yes’ response.” The court asked that anyone who did not understand stand up. No one stood.

The court asked if the defendants understood “that if you

plead guilty here this afternoon that there will be no trial.”

The interpreter conveyed another “General ‘yes’ response.”

However, the court paused here: “I’m not hearing everybody

respond to the question. So let me ask again to make sure that

everyone does understand that. Do you understand that if you

15704 UNITED STATES v. ROBLERO-SOLIS
plead guilty here this afternoon that there will be no trial.”

The interpreter conveyed another “General ‘yes’ response.” 

Moving on, the court asked if the defendants understood

that by pleading guilty there would be no trial: “General ‘yes’

answer.” The court asked if anyone had forced or threatened

defendants to plead guilty: “General ‘no’ response.” The court

asked defendants if they were pleading guilty “voluntarily and

because you are guilty”: “General ‘yes’ response.”

The court noted that those defendants who did not have a

written plea agreement (including all defendants appealing

here) had no plea agreement with the government. The court

asked if those defendants understood that the court “can

impose any sentence up to the maximum sentence that I

advised you of earlier”: “General ‘yes’ response.”

The court then moved to the taking of the pleas. “Counsel”

the court asked, “do you believe that your clients are competent to plead guilty and that they are doing so voluntarily?”

“Counsel” gave “General ‘yes’ answers.” The court resumed

addressing the defendants, explained the elements of illegal

entry, and asked “Do each of you understand the charge of

illegal entry?” Again, “General ‘yes’ response.” The court

then asked anyone who did not understand the charge to

stand. The record does not show whether anyone stood. 

Now the court began to address defendants individually.

Each defendant was asked in turn “how do you plead to the

charge of illegal entry?” Each defendant responded, when called upon, “Guilty.”

The court returned to addressing all defendants collectively

and asked them if they had committed each of the five elements of illegal entry. After each question, the court received

a “General ‘yes’ response” or a “General ‘no’ response” consistent with guilt. After elements two and five, but not the others, the court specifically asked defendants to stand if their

UNITED STATES v. ROBLERO-SOLIS 15705
answer was otherwise. The court noted for the record after

elements two and five that no one stood. 

The court returned to addressing counsel: “Mr. Hannan,

noting your objections, or just putting aside your objection for

a moment, counsel, are you satisfied with the factual basis for

the pleas with the exception of Mr. Hannan’s clients?” Counsel gave “General ‘yes’ answers.” The government indicated

that it, too, was satisfied. The court asked whether there was

“any legal reason why the court should not accept the pleas.”

“Counsel” responded with “General ‘no’ answers.” The court

stated that it was accepting the pleas of all defendants. 

In the sentencing phase, the court sentenced en masse to

time served all defendants who did not have written plea

agreements. 

After sentencing, the court turned again to Hannan and his

clients specifically. This exchange followed:

THE COURT: I want to make sure we have resolved

all your concerns. If you want to have additional

information on the record, we can do that and have

your clients remain to do that.

MR. HANNAN: Okay. I guess my objection,

though, if I could just clarify to the court, was that

the factual basis, the waiver of their rights would be

addressed individually. They have already pled

guilty and [been] sentenced. So I guess I’m not sure

what there is to address.

THE COURT: I think there’s two ways that it can be

handled.

You can withdraw any concerns that you might have

about it or we can make sure that all of your concerns have been addressed and your defendants can

15706 UNITED STATES v. ROBLERO-SOLIS
remain in the courtroom and we will address those

issues at this time to ensure there has been a factual

basis that is satisfactory to you and that they have

had every right to allocution that you think they

might have been deprived of in this process.

So I will leave that election to you.

MR. HANNAN: I guess we will have them remain

in courtroom. Thank you.

The court addressed each defendant represented by Hannan

individually and asked whether he or she “underst[ood] that

by pleading guilty that you were giving up your right to have

a jury trial.” Each defendant responded “Yes.” The court then

asked each defendant individually what country he or she was

a citizen of. Each confirmed to the court that he or she was

a citizen of Mexico. The court then began addressing all of

the defendants represented by Hannan as a group. The court

asked, “Did anyone enter at a point of entry?” The interpreter

gave the defendants’ responses as “All ‘no.’ ” The court

asked, “Did any of you have official permission to be present

in the United States?”: “All ‘no.’ ” After asking Hannan if he

had anything further, the court ended the proceedings.

March 6, 2008. Magistrate Judge Guerin took the pleas of

fifty defendants, including Rosales and Zarazua. Rosales and

Zarazua were represented by Hannan. Again, after taking roll

call, the magistrate judge asked if there were any objections

to conducting the proceedings as a group. Hannan objected

“to having the proceedings done in a group” as to Zarazua and

Rosales. Hannan explained the basis for his objection: 

Your Honor, the basis for the objections is that my

clients in order to determine that the waiver is knowing and voluntary requires an individualized assessment by the court. Additionally, as to the inquiry to

the factual basis, in order to determine there is a facUNITED STATES v. ROBLERO-SOLIS 15707
tual basis (unintelligible). And, thirdly, the defendant

has a right to allocute before the court personally as

well as defense counsel addressed by the court. Both

of my clients would like to do that.

In response, the magistrate judge questioned Hannan, asked

him if he had met with his clients, if he had advised them as

to their waiver, as to whether he thought that they understood

the waiver, as to whether he had any doubt of the factual basis

for each client’s offense, and as to whether he believed that

the pleas were voluntary. He answered that he had made the

advisements and that he had no doubt as to the factual basis

and waiver. Hannan did not object that the court was not

responding to his original objection. Neither the magistrate

judge nor Hannan returned to his objections for the rest of the

March 6 proceeding.

After the colloquy regarding Hannan’s objections, the court

explained to the defendants the process that it would use to

take their pleas, including asking any defendant who did not

understand at any time to stand up. In the same fashion as it

had in the March 5 proceeding, the court proceeded to explain

defendants’ rights and ask whether defendants understood the

charges and the maximum penalty. In each case, the court

received “General ‘yes’ answers” as it had on March 5. As on

March 5, the court then addressed defendants one-by-one and

asked how each defendant pleaded. In each case, defendant

responded “Guilty.” 

To elicit the factual basis for these pleas, the magistrate

returned to addressing the defendants en masse. She asked the

defendants whether they disputed each element of the crime

and received “General ‘no’ answers” consistent with guilt. At

that time the court accepted the pleas of guilty and found that

the pleas were knowing, intelligent, and voluntary. Unlike

March 5, there was no post-plea colloquy with Hannan’s

defendants.

15708 UNITED STATES v. ROBLERO-SOLIS
Hearings in the District Court. Each of the six defendants

appealed his conviction by the magistrate judge to the district

court. Their appeals were assigned to four different district

judges. 

Each district court judge approached the cases somewhat

differently. Judge Cindy Jorgensen found that Roblero-S’s

and Roblero-P’s claims of error were not preserved and

reviewed their plea proceedings for plain error. Under this

standard, when the post-sentencing proceedings were taken

into account, Judge Jorgensen found that the magistrate did

not plainly err under the standards of Rule 11. Judge Jorgensen also found that it was not error under the standards of due

process for the magistrate to take defendants’ pleas in a group

proceeding involving 47 defendants, because defendants were

represented by attorneys when their pleas were taken. 

Judge Raner Collins found that Hannan’s objections at the

outset of the proceedings were sufficient to preserve

Vasquez’s claims of Rule 11 error, and thus applied a de novo

standard of review to the Rule 11 claims. Nonetheless, looking at the record as a whole, apparently including the postsentencing proceedings, Judge Collins found that the magistrate had produced a record that showed a factual basis to satisfy Rule 11. As to due process, Judge Collins held that the

presence of counsel was sufficient. 

Judge Frank Zapata vacated the conviction of Martinez.

Judge Zapata found that Hannan had made his objection to the

factual basis for the plea clear to the court and that there was

no resolution of the objection before the court accepted the

plea, sentenced the defendant, and entered judgement on the

sentence. He also ruled that the post-sentencing colloquy was

insufficient to provide the Rule 11 factual basis and that the

error was not harmless.

March 6 Cases. Judge Collins heard Zarazua’s case. He

found that Hannan’s March 6 objection was sufficient, and

UNITED STATES v. ROBLERO-SOLIS 15709
that the court’s choice to address Hannan to ask him as counsel whether he believed that his clients were pleading guilty

voluntarily and upon a sufficient factual basis did not dispose

of the objection. Nonetheless, Judge Collins found that the

presence of counsel satisfied due process and that the magistrate had compiled a sufficient record to show that the plea

complied with Rule 11. 

Rosales had his appeal heard by Judge David Bury. Judge

Bury agreed with Judge Collins on every significant issue.

Roblero-P, Roblero-S, Rosales, Vasquez and Zarazua

appeal the judgments of the district court. The government

appeals the judgment in Martinez’s case.

ANALYSIS

[1] Mootness. Sua sponte this court raised the question of

whether the appeals were moot. The defendants have served

their sentences and apparently have been deported. They do

face the prospect of a higher sentence if they should again

make an illegal entry; but the possibility of “violating the law,

getting caught, and being convicted” does not constitute a

consequence preventing mootness. Spencer v. Kemna, 523

U.S. 1, 15 (1998). But they also face various adverse consequences that will result even if they do not violate the law,

such as longer periods during which they will be ineligible to

enter legally. Further, in a case where constitutional rights

were allegedly at issue, the Supreme Court recognized that a

case was not moot when a state procedure cut off the possibility of appeal by the shortness of the sentence being appealed.

Sibron v. New York, 392 U.S. 42 (1968). Otherwise, it was

reasoned, short sentences could short circuit any appeal and

deprive defendants in “low visibility” cases of the chance of

vindicating their rights under the constitution. Id. at 52-53.

Although we do not reach a constitutional claim in this case,

we believe that analogous considerations counsel treating as

15710 UNITED STATES v. ROBLERO-SOLIS
alive these cases where the “time served sentences” are so

short that no appeal would be practicable.

Standard of review. The decisions of the district judges,

deciding questions of law, are reviewed de novo. See United

States v. Waites, 198 F.3d 1123, 1126 (9th Cir. 2000).

The Requirements of Rule 11. Rule 11, in relevant part,

reads:

(b) Considering and Accepting a Guilty or Nolo

Contendere Plea.

(1) Advising and Questioning the Defendant. 

Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and

the court must address the defendant personally in

open court. During this address, the court must

inform the defendant of, and determine that the

defendant understands, the following:

(A) the government’s right, in a prosecution for perjury or false statement, to use against the defendant

any statement that the defendant gives under oath;

(B) the right to plead not guilty, or having already so

pleaded, to persist in that plea;

(C) the right to a jury trial;

(D) the right to be represented by counsel — and if

necessary have the court appoint counsel — at trial

and at every other stage of the proceeding;

(E) the right at trial to confront and cross-examine

adverse witnesses, to be protected from compelled

UNITED STATES v. ROBLERO-SOLIS 15711
self-incrimination, to testify and present evidence,

and to compel the attendance of witnesses;

(F) the defendant’s waiver of these trial rights if the

court accepts a plea of guilty or nolo contendere;

(G) the nature of each charge to which the defendant

is pleading;

(H) any maximum possible penalty, including

imprisonment, fine, and term of supervised release;

(I) any mandatory minimum penalty;

(J) any applicable forfeiture;

(K) the court’s authority to order restitution;

(L) the court’s obligation to impose a special assessment;

(M) in determining a sentence, the court’s obligation

to calculate the applicable sentencing-guideline

range and to consider that range, possible departures

under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. § 3553(a); and

(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the

sentence.

(2) Ensuring That a Plea Is Voluntary. 

Before accepting a plea of guilty or nolo contendere,

the court must address the defendant personally in

open court and determine that the plea is voluntary

and did not result from force, threats, or promises

(other than promises in a plea agreement).

15712 UNITED STATES v. ROBLERO-SOLIS
(3) Determining the Factual Basis for a Plea. 

Before entering judgment on a guilty plea, the court

must determine that there is a factual basis for the

plea.

In its Notes on the 1966 Amendments to the Rules of Criminal Procedure, the Advisory Committee had this to say about

the importance and role of Rule 11:

The great majority of all defendants against whom

indictments or informations are filed in the federal

courts plead guilty. Only a comparatively small

number go to trial. See United States Attorney Statistical Reports, Fiscal Year 1964, p. 1. The fairness

and adequacy of the procedures on acceptance of

pleas of guilty are of vital importance in according

equal justice to all in the federal courts.

It is in the light of these observations that we address the

claim that Rule 11 was violated.

[2] Rule 11(b)(1) provides that before accepting a guilty

plea “the court must address the defendant personally in open

court.” During this address “the court must determine” that

the defendant understood certain specified rights, risks, and

consequences. Under section (b)(2) before accepting the

guilty plea, “the court must address the defendant personally

. . . and determine that the plea is voluntary.” Can these mandatory requirements be met when the court addresses a multitude of defendants?

Answering affirmatively, the government has these arguments: First, the adverb “personally” qualifies the action of

the judge. It is he who must act in person. Second, the Advisory Committee Notes on the 1966 Amendments indicate that

the provisions on addressing the defendant “personally” were

made to assure that the judge addressed the defendant, not the

UNITED STATES v. ROBLERO-SOLIS 15713
defendant’s counsel. Third, out-of-circuit precedents show

that several defendants may be addressed together in a pleataking. See United States v. Martinez-Martinez, 69 F.3d 1215,

1223 (1st Cir. 1995); United States v. Hobson, 686 F.2d 628,

629-30 (8th Cir. 1981); United States v. Fels, 599 F.2d 142,

146 (7th Cir. 1979). The government concludes that “address

personally” requires less than “address individually.”

[3] “Personally,” as an adverb, undoubtedly modifies the

verb “address”: the judge must act in person. But the adverb

also qualifies the nature of the judge’s speech: it must be to

a person, “in a personal manner,” as Webster’s Third International Dictionary (1986) defines “personally.” Indeed the

word order in which “personally” follows “the defendant”

emphasizes that the judge’s speech is to be person to person.

Persons occupy a central place in the Fourteenth Amendment.

“Person” and its derivative “personally” carry constitutional

connotations. 

[4] The rule speaks only of the defendant in the singular.

But the rules are not rigid. Fels involved three defendants

charged as co-conspirators. United States v. Fels, 599 F.2d at

144. Martinez-Martinez involved two defendants charged as

co-conspirators. United States v. Martinez-Martinez, 69 F.3d

at 1223. Hobson involved a small, if unspecified set of codefendants in the same conspiracy. United States v. Hobson,

686 F.2d at 626.

[5] In contrast, nothing in the record in our case establishes

any connection between the defendants. The numbers are significantly greater. These precedents do not establish a principle that the number of plea-takers may be indefinitely

expanded without violation of Rule 11.

[6] To be specific, no judge, however alert, could tell

whether every single person in a group of 47 or 50 affirmatively answered her questions when the answers were taken at

the same time. No judge could have detected a mute response

15714 UNITED STATES v. ROBLERO-SOLIS
offered in the midst of a medley of voices saying “Si.” No

judge, however conscientious, could have possessed the ability to hear distinctly and accurately fifty voices at the same

time. The record reflects the most that could be detected: a

“General Yes.” How different that record is from the hearing

in which four of the appellants were questioned together, and

the record reflects responses from “All.” Neither an indistinct

murmur or medley of yeses nor a presumption that all those

brought to court by the Border Patrol must have crossed the

border is sufficient to show that each defendant pleaded voluntarily.

The errors do not constitute structural error as defined in

Arizona v. Fulminante, 499 U.S. 279, 309 (1991). These

“rare” errors are those undermining “the constitution of the

trial mechanism”: the presence of a biased judge or the denial

of the right to counsel. Id. Such errors are not redeemable by

retrospective analysis or by retrospective action. Such is not

the case here. Nonetheless, the defendants assert that they

were deprived of substantial rights and the magistrate judge

did not remedy the deprivation. Was the error without effect

on the substantial right of these defendants?

[7] Unproved Effects. One of the district judges reviewing

the magistrate judge’s procedure reviewed for plain error, putting the burden on defendants to show that the errors affected

their substantial rights. Other of the judges reviewed for

harmlessness, putting the burden on the government to establish it. We believe that plain error was the correct legal test.

The standard depends on whether the Rule 11 errors were preserved. We hold that they were not, so plain error should have

been the standard applied by each district judge. 

Before the March 5 proceedings were terminated the magistrate judge inquired of the four defendants whether they had

committed the elements of the offense. Hannan did not ask

the court to determine the voluntariness of their pleas. The

record shows the magistrate judge seeking to satisfy Hannan’s

UNITED STATES v. ROBLERO-SOLIS 15715
objections. It shows no discontent let alone objection by him

to what she provided.

On March 6, Hannan did object that the court should individually assess the knowing and voluntary character of the

two defendants’ pleas; but when the magistrate judge

responded by interrogating him, he did not say, “That’s not

my point. You have to get the answers from them.” The court

could not have understood from his acquiescence that he was

secretly preserving his objection. It was waived. Plain error is

the standard. 

[8] That standard is set by United States v. Dominguez

Benitez, 542 U.S. 74 (2004). The defendants must show that

their substantial rights have been affected. Therefore, each

defendant “must show a reasonable probability that, but for

the error, he would not have entered the plea.” Id. at 83. None

of these defendants has made such a showing or even

attempted it. Consequently, the judgments of conviction must

be upheld and the judgment of acquittal must be reversed.

For the foregoing reasons, the judgment in Martinez is

REVERSED. The judgments in Roblero-P, Roblero-S., Rosales, Vasquez and Zarazua are AFFIRMED.

15716 UNITED STATES v. ROBLERO-SOLIS