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United States of America v. Samuel Ortiz-Garcia

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Before Lynch, Chief Judge, Torruella and Stahl, Circuit Judges.

Defendant-appellant Samuel Ortiz-Garcia (Ortiz) executed a plea agreement and entered a guilty plea without ever having been informed that the maximum penalty for the crime to which he was pleading guilty was life imprisonment. Ortiz ultimately received a sentence of 360 months, though his plea agreement recommended 120 months. Ortiz argues that the waiver of appeal provision in his plea agreement is unenforceable, that the district court violated Rule 11 by failing to inform him of the maximum penalty at his change-of-plea hearing, and that the court violated Rule 32 by failing to inquire at the sentencing hearing whether Ortiz had reviewed the pre-sentence investigation report with his attorney. Because we find that the waiver is unenforceable and that the Rule 11 violation constituted plain error, we vacate and remand for a new change-of-plea hearing.

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