NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. ANTONIO RENE MARTINEZ,

Defendant

- Appellant. No. 20

- 10056
D.C. No. 1:14

- cr - 00158

- LJO

- SKO

- 1

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding Argued and Submitted March 1, 2021 San Francisco, California Before: WARDLAW and BERZON, Circuit Judges, and CHEN, * * District Judge.
Antonio Rene Mar

t inez appeals from the district court’s judgment and challenges the 41

- month sentence imposed following his guilty

- plea conviction for illegal reentry in violation of 8 U.S.C. § 1326 (a)

. We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. 

# FILED

APR 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 20

- 10056

U.S.C. § 1291, and we affirm. Martinez was charged with illegal reentry. After rejecting proffered plea agreements, Martinez entered an open plea of guilty and was sentenced to 41
months in prison.
Martinez filed a pro se motion to vacate , set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 , alleging ineffective assistance of counsel (“IAC”)

. After an evidentiary hearing, the district court denied the § 2255 motion

. The district court found that Martinez had been correctly advised of his sentencing guideline s exposure, determined that Martinez’s priority had been to preserve his appellate rights in order to maintain the best chance of remaining lawfully in the
United Stat es , and rejected Martinez’s claim that he received ineffective assistance regarding his ability to attack his underlying deportation order. The district court
also denied Martinez’s IAC claim challenging counsel’s failure to file a direct appeal on Martin ez’s behalf , but issued a certificate of appealability on that issue

. Martinez appealed. The parties subsequently agreed that Martinez should be allowed to take a direct appeal in light of Garza v. Idaho , 139 S. Ct. 738 (2019)

. Upon the parties’ request , t his court vacated the district court’s order denying Martinez’s § 2255 motion , and the district court re

- enter ed the criminal judgment.3 20

- 10056

This appeal followed

. 1
1. Martinez argues that the district court’s failure to comply strictly with
Rule 11 , in particular sub

- sections (b)(1)(M), (b)(1)(O), and (b)(2) , constituted
reversible error
. Because Martinez did not object during the plea colloquy , w e review for plain error

. Fed. R. Crim. P. 52(b); United States v. Olano , 507 U.S. 725, 730

– 36 (1993). To establish plain error, M artinez must demonstrate a “reasonable probability that, but for the [Rule 11] error, he would not have entered the plea.”
United States v. Monzon , 429 F.3d 1268, 1272 (9th Cir. 2005) ( quoting United
States v. Dominguez Benitez , 542 U.S. 74, 83 (2004) ). In undertaking that inquiry, the court considers, inter alia , “the overall strength of the Government's case and any possible defenses that appear from the record, ” “ evidence tending to show that a misunderstanding was in consequential to a defendant's decision, [and] evidence indicating the relative significance of other facts that may have borne on his choice regardless of any Rule 11 error.” Id . (quoting Dominguez Benitez , 542 U.S. at 84

– 85). In this case, the distric t court deviated significant ly from the requirements of

1 This appeal is from the co nviction only. It does not cover the IAC claims concerning the guilty plea raised in the earlier § 2255 motion , and we express no view as to the merits of those claims or whether or how Martinez may seek to renew those claims once the conviction becomes final.4 20

- 10056

Rule 11

. However, Martinez has not demonstrated a reasonable probability that
the error s affected his decision to plead guilty

. While the record shows that Martinez equivocated about accepting the plea agreements offered by the government, he did not equivocat e about his ultimate decision to plead guilty. In his post

- conviction letters to the court, Martinez repeatedly challenge d the length
of the sentence he received , rather than the guilty plea itself

. He also proposed accepting one of the previously rejected plea offers the government had proffered

. Even in his motion for reconsideration, Martinez did not request to withdraw his plea and go to trial . Instead, he asked the court t o impose the lower sentence contemplated in the plea agreements offered by the government

. Moreover, the government’s overall case against Martinez was strong ; had
he gone to trial and been convicted (a likely result) , his total offense level would

no longer reflect a three

- point reduction for acceptance of responsibility under U.S.S.G. §§ 3E1.1(a) and (b)

. Instead, Martinez would have faced a higher Guidelines range , 57

– 71 months

. Thus, even though Martinez contends that had
he been asked by the judg e whether any promises had been made to him, he might have responded that his lawyer had led him to expect a shorter sentence, there is no reasonable probability that Martinez, upon being disabused of any guarantee of a
shorter sentence if he pled guilty , would have risked a trial that likely would have
resulted in an even longer sentence.5 20

- 10056

W e conclude there is no reasonable probability that the Rule 11 error s impacted Martinez’s decision to plead guilty. We do note that as Rule 11’s requirements are meant to avoid the need to inquire into the voluntariness of a plea
after

- the

- fact, see McCarthy v. United States , 394 U.S. 459, 465

– 66 (1969) , careful adherence to them benefits both the litigants and the cou rts by eliminating the necessity for the sort of retrospective inquiry we have just conducted.
2. Martinez next contends that the district court violated Federal Rule of
Criminal Procedure 32(i)(1)(A) at sentencing by failing to verify that he had
reviewe d and discussed the presentence investigation report (“PSR”) with counsel

. We review for harmless error a district court ’ s failure to verify that a defendant read a presentence report and discussed the same with his counsel. United States v.
Soltero , 510 F.3d 858, 863 (9th Cir. 2007). The error is harmless “if it is clear that no prejudice resulted

. ” Id . ( quoting United States v. Davila

- Escovedo , 36 F.3d 840, 844 (9th Cir. 1994) ).
As Martinez concedes , any error was harmless because he has “ ‘ made no affirmative allegation that he failed to read the report ’ and review it with his attorney, ” nor has he “ identified

— either to the district court or to this court

— any fact in the PSR he would have disputed had the sentencing judge afforded him the

o pportunity. ” Id

. (quoting Davila

- Escovedo , 36 F.3d at 844) (emphasis in original)

. Accordingly, the district court ’ s Rule 32( i )(1)(A) error was harmless.6 20

- 10056

AFFIRMED.