Page:United States Reports, Volume 542.djvu/124

Rh conﬁrmation of that representation, made at the same hearing. The neglected but relevant considerations also included the implications raised by Dominguez's protests at the sentencing hearing. He claimed that when he pleaded guilty he had "never had any knowledge about the points of responsibility, the safety valve, or anything like that." App. 109. These statements, if credited, would show that Dominguez was confused about the law that applied to his sentence, about which the court clearly informed him, but they do not suggest any causal link between his confusion and the particular Rule 11 violation on which he now seeks relief.

Other matters that may be relevant but escape notice under the Ninth Circuit's test are the overall strength of the Government's case and any possible defenses that appear from the record, subjects that courts are accustomed to considering in a Strickland or Brady analysis. When the record made for a guilty plea and sentencing reveals evidence, as this one does, showing both a controlled sale of drugs to an informant and a confession, one can fairly ask a defendant seeking to withdraw his plea what he might ever have thought he could gain by going to trial. The point of the question is not to second guess a defendant's actual decision; if it is reasonably probable he would have gone to trial absent the error, it is no matter that the choice may have been foolish. The point, rather, is 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 had an effect on Dominguez's assessment of his strategic position. And even if there were reason to think the warning from the bench could have mattered, there was the plea agreement, read to Dominguez in his native Spanish, which 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.