UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALPHONSO VONN,

Defendant - Appellant.

No. 98-50385

D.C. No. CR-97-00233-JMI

Filed June 20, 2002

On Remand from the United States Supreme Court

We previously set aside Vonn’s guilty plea because the district court did not

advise Vonn of his right to be represented by counsel at trial. United States v.

Vonn, 224 F.3d 1152 (9th Cir. 2000). In so doing, we followed our circuit

precedent of reviewing the district court’s violation of Fed. R. Crim. P. 11 for

harmless error even when the defendant failed to object, id. at 1155 (citing United

States v. Odedo, 154 F.3d 937, 940 (9th Cir. 1998)), and confining our review to the

record of the defendant’s plea proceeding, id. (citing Odedo, 154 F.3d at 940, and

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Vonn’s initial appearance and arraignment, which the government presented when

requesting rehearing. Vonn, 122 S. Ct. at 1055. We therefore grant the

government’s Motion to Expand the Record.

United States v. Gastelum, 16 F.3d 996, 999 (9th Cir. 1994)). The Supreme Court

vacated our opinion and held that we must review for plain error and may consult

the entire record, from the defendant’s first appearance to his plea colloquy. United

and Gastelum, insofar as they are to the contrary.

To prevail, Vonn must show that, by failing to inform him of his right to

counsel at trial, the district court committed a plain error that affected both Vonn’s

"substantial rights" and "the fairness, integrity or public reputation of judicial

proceedings." Vonn, 122 S. Ct. at 1048 (quoting United States v. Olano, 507 U.S.

725, 734-36 (1993)). After considering the full record, we conclude that Vonn is

unable to satisfy this burden. During Vonn’s first appearance, and again at his

arraignment, the magistrate judge advised Vonn that he had the right to counsel at

all stages of the proceedings. On both occasions, Vonn affirmed that he had

received and understood his rights. Furthermore, Vonn was accompanied by

counsel at a status conference where the district court and the parties discussed the

scheduling of his forthcoming trial. Given that he had previously been advised of

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district court’s failure to advise Vonn of his right to counsel dispositive. Vonn, 224

F.3d at 1154 n.1.

his right to trial counsel, the presence of counsel during the scheduling colloquy

would have confirmed Vonn’s understanding that he would have counsel at trial.

We presume that Vonn recalled at his plea colloquy the information gained during

his initial appearance, arraignment and status conference. See Vonn, 122 S. Ct. at

1055 ("defendants may be presumed to recall information provided to them prior to

the plea proceeding") (citing Bousley v. United States, 523 U.S. 614, 618 (1998)).

We also conclude that the district court did not commit plain error by failing

to warn Vonn that statements he made during the change of plea hearing could be

The record shows that Vonn’s plea was voluntary, and the government did not

initiate a perjury action against Vonn. Therefore, "[t]he [district] court’s failure to

warn [Vonn] of the possibility of a perjury prosecution did not cause him to suffer

any prejudice or affect the voluntariness of his plea." United States v. Conrad, 598

F.2d 506, 509 (9th Cir. 1979).