Criminal: Challenge to Rule 11 colloquy fails

Where the defendant argued his Rule 11 colloquy, following his guilty plea, was plainly erroneous because he was not told that each § 922(g)(5) count carried up to 10 years’ imprisonment, his argument failed. Even if this was a plain error, the record showed no reasonable probability that he would have otherwise proceeded to trial.

Background

Edin Anael Solis-Rodriguez twice brandished firearms in local restaurants during a 16-month span. The second time, he shot a patron at point-blank range. Because Solis-Rodriguez had entered the United States illegally, the government charged him with two counts of possessing a firearm as an illegal alien. Solis-Rodriguez pled guilty.

He now challenges his Federal Rule of Criminal Procedure 11 colloquy as plainly erroneous and his sentence as procedurally unreasonable. In particular, he argues that the magistrate judge erred under Rule 11 by never clarifying that each § 922(g)(5) count carried up to 10 years’ imprisonment. So, he wants his guilty plea vacated.

And he alleges his sentence is procedurally unreasonable because the district court failed to properly consider his nonfrivolous mitigating arguments about remorse, age and lack of criminal history. For that, he wants a new sentencing.

Colloquy

“Because [Solis-Rodriguez] neither objected to the judge’s [colloquy], nor made an attempt to withdraw his guilty plea, we consider his appellate argument under the rigorous plain error standard.” To succeed on plain-error review, Solis-Rodriguez must show (1) an error occurred; (2) the error was plain or obvious; and (3) the error affected his substantial rights.

Assuming, without deciding, that the magistrate judge erred in not informing Solis-Rodriguez that each individual offense carried up to 10 years’ imprisonment, and that this error was obvious under existing law, to demonstrate that a Rule 11 error affected his substantial rights, Solis-Rodriguez “must show a reasonable probability that, but for the error, he would not have entered the plea.”

Taking this court’s precedent into account and considering this record, it finds no reasonable probability that Solis-Rodriguez would have proceeded to trial absent the magistrate judge’s alleged error. Solis-Rodriguez neither objected to, nor moved to withdraw, his guilty plea below. Nor did he indicate any surprise at the sentencing hearing when presented with the possibility of 20 years’ imprisonment.

Solis-Rodriguez was faced the government’s strong evidence—police testimony about finding the Hi-Point pistol on Solis-Rodriguez during the first incident, his admission that he owned the nine-millimeter pistol used at The Taco Bar shooting and security footage of that shooting. And his plea slashed the applicable guidelines range from 210-240 months to 151-188 months.

Sentencing

Solis-Rodriguez also argues his sentence is procedurally unreasonable because he raised three nonfrivolous mitigating arguments—remorse, age and lack of violent criminal history—that the district court failed to consider or address.

Solis-Rodriguez never argued his remorse supported a sentence at the low end of the guidelines range. Instead, he expressed remorse during his allocution. After the allocution, Solis-Rodriguez’s counsel argued for a lower sentence but did not rely on remorse. Because remorse was not a “non-frivolous reason[] presented for imposing a different sentence,” the district court had no obligation to consider it.

And the district court adequately considered Solis-Rodriguez’s age and lack of criminal history arguments and explained its reasoning. Two elements of the record, taken together, demonstrate this. First, the district court clarified—twice—that it considered “all of the [§ 3553(a)] sentencing factors.” And the “context surrounding [the] district court’s explanation” sufficiently demonstrates why the court rejected Solis-Rodriguez’s arguments about his age and criminal history.

Finally, although not necessary for, nor a basis of, this court’s decision, it also notes that the district court asked counsel “if there’s any legal reason why this sentence as proposed should not be imposed?” By doing so, the court offered both parties an opportunity to raise concerns with the sentence. Neither did.

Affirmed.

Concurring opinion

Traxler, J., concurring in part and concurring in the judgment:

I agree that the district court adequately considered the § 3553(a) sentencing factors and sufficiently explained the chosen sentence. Therefore, Solis-Rodriguez has failed to prevail on his sentencing challenge under both the harmless error and plain error standards of review. I write separately to address, in more detail, my view that plain error review is appropriate in this case.

United States v. Solis-Rodriguez, Case No. 22-4654, July 23, 2025. 4th Cir. (Quattlebaum), from WDNC at Charlotte (Whitney). Ashley Ali Askari for Appellant. Amy Elizabeth Ray for Appellee. VLW 025-2-279. 27 pp.