Page:United States Reports, Volume 542.djvu/123

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What we have already said points to why the test applied by the Court of Appeals in this case fell short. Its first element was whether the error was "minor or technical," 310 F.3d, at 1225, a phrase it took from United States v. Graibe, (CA9 1991), which in turn found it in the 1983 commentary that accompanied the amendment to Rule 11(h). 946 F.2d, at 1433. But this element requires no examination of the effect of the omitted warning on a defendant's decision, a failing repeated to a significant extent by the second element of the Ninth Circuit's test, taken from United States v. Minore, (CA9 2002), which asks whether the defendant understood "the rights at issue when he entered his guilty plea." 310 F. 3d, at 1225. True, this enquiry gets closer than the first to a consideration of the likely effect of Rule 11 error on the defendant's decision to plead; assessing a claim that an error affected a defendant's decision to plead guilty must take into account any indication that the omission of a Rule 11 warning misled him. But the standard of the Court of Appeals does not allow consideration of any record 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.

Relevant evidence that the Court of Appeals thus passed over in this case included Dominguez’s statement to the District Court that he did not intend to go to trial, and his