NOT FOR PUBLICATION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 Martinez 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 APPEALS
2 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 

guidelines 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 States, 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 Martinez’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, this court vacated the district court’s order denying 

Martinez’s § 2255 motion, and the district court re-entered 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, we 

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, Martinez 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 inconsequential 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 district court deviated significantly from the requirements of 

1 This appeal is from the conviction 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 errors 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 equivocate about his ultimate decision to plead guilty. In 

his post-conviction letters to the court, Martinez repeatedly challenged 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 to 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 judge 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.
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We conclude there is no reasonable probability that the Rule 11 errors 

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 courts 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 

reviewed 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 

opportunity.” 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.