Page:United States Reports, Volume 542.djvu/114

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the verdict." Id., at 776. Where the burden of demonstrating prejudice (or materiality) is on the defendant seeking relief, this Court has invoked a similar standard, which requires "a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different" is required. United States v. Bagley,, 682 (opinion of ). For defendants such as Dominguez, the burden of establishing entitlement to plain error relief should not be too easy: First, the standard should enforce the policies underpinning Rule 52(b) generally, to encourage timely objections and reduce wasteful reversals by demanding strenuous exertion to get relief for unpreserved error, see Vonn, supra, at 73; and second, it should respect the particular importance of the ﬁnality of guilty pleas, which usually rest on a defendant's profession of guilt in open court, and are indispensable in the modern criminal justice system's operation, see United States v. Timmreck, , 784. Pp. 80–83.

(b) The Ninth Circuit's test in this case fell short. Its ﬁrst element (whether the error was "minor or technical") requires no examination of the omitted warning's effect on a defendant's decision, a failing repeated to a significant extent by the test's second element (whether the defendant understood the rights at issue when he pleaded guilty). That court's standard does not allow consideration of evidence tending 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. Nor does it consider the overall strength of the Government's case. When, as here, the record shows both a controlled drug sale to an informant and a confession, one can fairly ask what a defendant seeking to with draw his plea thought he could gain by going to trial. The point is not to second guess the defendant's actual decision, but to enquire whether the omitted warning would have made the difference required by the standard of reasonable probability; it is hard to see here how the warning could have affected Dominguez's assessment of his strategic position. Also, the plea agreement, read to Dominguez in his native Spanish, specifically warned that he could not withdraw his plea if the court refused to accept the Government's recommendations; this fact, uncontested by Dominguez, tends to show that the Rule 11 error made no difference to the outcome here. Pp. 83–86.

, reversed and remanded.