UNITED STATES v. DOMINGUEZ BENITEZ

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
74 OCTOBER TERM, 2003
Syllabus
UNITED STATES v. DOMINGUEZ BENITEZ
certiorari to the united states court of appeals for
the ninth circuit
No. 03–167. Argued April 21, 2004—Decided June 14, 2004
After respondent Dominguez Benitez (hereinafter Dominguez) confessed
to selling drugs to an informant, he was indicted on drug possession and
conspiracy counts. On the conspiracy count, he faced a 10-year manda-
tory minimum sentence. His plea agreement with the Government pro-
vided that Dominguez would plead guilty to conspiracy and the Govern-
ment would dismiss the possession charge; that he would receive a
safety-valve reduction of two levels, which would allow the court to
authorize a sentence below the otherwise mandatory 10-year minimum;
that the agreement did not bind the sentencing court; and that he could
not withdraw his plea if the court rejected the Government’s stipula-
tions or recommendations. He pleaded guilty to the conspiracy charge,
but, in the plea colloquy, the court failed to mention (though the written
plea agreement did say) that Dominguez could not withdraw his plea if
the court did not accept the Government’s recommendations. See Fed.
Rule Crim. Proc. 11(c)(3)(B). The Probation Office subsequently found
that Dominguez had three prior convictions, making him ineligible for
the safety valve, so the District Court sentenced him to the mandatory
minimum. On appeal, Dominguez argued, for the first time, that the
District Court’s failure to warn him, as Rule 11(c)(3)(B) instructs, that
he could not withdraw his plea if the court did not accept the Govern-
ment’s recommendations required reversal. The Ninth Circuit agreed,
citing United States v. Olano, 507 U. S. 725, in applying Federal Rule of
Criminal Procedure 52’s plain-error standard.
Held: To obtain relief for an unpreserved Rule 11 failing, a defendant must
show a reasonable probability that, but for the error, he would not have
pleaded guilty. Pp. 80–86.
(a) When a defendant is dilatory in raising Rule 11 error, reversal is
unwarranted unless the error is plain. United States v. Vonn, 535 U. S.
55, 63. Except for certain structural errors undermining the criminal
proceeding’s fairness as a whole, relief for error is tied to prejudicial
effect, and the standard phrased as “error that affects substantial
rights,” as used in Rule 52, means error with a prejudicial effect on a
judicial proceeding’s outcome. See Kotteakos v. United States, 328
U. S. 750. Kotteakos held that to affect “substantial rights,” an error
must have “substantial and injurious effect or influence in determining

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
75 Cite as: 542 U. S. 74 (2004)
Syllabus
the . . . verdict.” Id., at 776. Where the burden of demonstrating prej-
udice (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, 473 U. S. 667, 682
(opinion of Blackmun, J.). For defendants such as Dominguez, the bur-
den 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 re-
versals by demanding strenuous exertion to get relief for unpreserved
error, see Vonn, supra, at 73; and second, it should respect the particu-
lar 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, 441 U. S. 780, 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 defend-
ant 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 deci-
sion, 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 warn-
ing could have affected Dominguez’s assessment of his strategic posi-
tion. Also, the plea agreement, read to Dominguez in his native Span-
ish, specifically warned that he could not withdraw his plea if the court
refused to accept the Government’s recommendations; this fact, uncon-
tested by Dominguez, tends to show that the Rule 11 error made no
difference to the outcome here. Pp. 83–86.
310 F. 3d 1221, reversed and remanded.
Souter, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Kennedy, Thomas, Ginsburg, and
Breyer, JJ., joined. Scalia, J., filed an opinion concurring in the judg-
ment, post, p. 86.

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
76 UNITED STATES v. DOMINGUEZ BENITEZ
Opinion of the Court
Dan Himmelfarb argued the cause for the United States.
With him on the briefs were Solicitor General Olson, Assist-
ant Attorney General Wray, and Deputy Solicitor General
Dreeben.
Myra D. Mossman, by appointment of the Court, 540 U. S.
1175, argued the cause and filed a brief for respondent.*
Justice Souter delivered the opinion of the Court.
Respondent claims the right to withdraw his plea of guilty
as a consequence of the District Court’s failure to give one
of the warnings required by Federal Rule of Criminal Proce-
dure 11. Because the claim of Rule 11 error was not pre-
served by timely objection, the plain-error standard of Rule
52(b) applies, with its requirement to prove effect on sub-
stantial rights. The question is what showing must thus be
made to obtain relief for an unpreserved Rule 11 failing, and
we hold that a defendant is obliged to show a reasonable
probability that, but for the error, he would not have entered
the plea.
I
In early May 1999, a confidential informant working with
law enforcement arranged through respondent Carlos Do-
minguez Benitez (hereinafter Dominguez) to buy several
pounds of methamphetamine. First, the informant got a
sample from Dominguez, and a week later Dominguez went
to a restaurant in Anaheim, California, to consummate the
sale in the company of two confederates, one of whom
brought a shopping bag with over a kilogram of the drugs.
The meeting ended when the informant gave a signal and
officers arrested the dealers. Dominguez confessed to sell-
ing the methamphetamine and gave information about his
supplier and confederates.
*Stevan A. Buys filed a brief for Arnaldo Rafael Vicente Infante-
Cabrera as amicus curiae urging affirmance.

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
77 Cite as: 542 U. S. 74 (2004)
Opinion of the Court
A federal grand jury indicted Dominguez on two counts:
conspiracy to possess more than 500 grams of methamphet-
amine, and possession of 1,391 grams of a methamphetamine
mixture, both with intent to distribute. On the conspiracy
count, Dominguez faced a statutory, mandatory minimum
sentence of 10 years, with a maximum of life. 84 Stat. 1260,
21 U. S. C. §§ 841(b)(1)(A), 846. The District Court ap-
pointed counsel, who began talking with the Government
about a plea agreement.
In September 1999, the District Court received the first of
several letters from Dominguez,1 in which he asked for a new
lawyer and expressed discomfort with the plea agreement
his counsel was encouraging him to sign. On counsel’s mo-
tion, the court held a status conference, at which Dominguez
spoke to the judge. Again he said he was dissatisfied with
his representation, and wanted a “better deal.” The court
asked whether he was “talking about a disposition . . . other
than trial,” and Dominguez answered, “At no time have I
decided to go to any trial.” App. 46–47. Counsel spoke to
the same effect later in the proceeding, when he said that he
had “told [the prosecutor] all along that there won’t be a trial
on the [date set] based on my client’s representations that he
doesn’t want a trial.” Id., at 51. The court explained to
Dominguez that it could not help him in plea negotiations,
and found no reason to change counsel.
Shortly after that, the parties agreed that Dominguez
would plead guilty to the conspiracy, and the Government
would dismiss the possession charge. The Government stip-
ulated that Dominguez would receive what is known as a
safety-valve reduction of two levels. See United States
Sentencing Commission, Guidelines Manual §§ 2D1.1(b)(6),
1 Dominguez speaks and writes Spanish, not English. A certified trans-
lator was present for the hearings in court we describe, and for the plea
agreement. Some of the letters are in English, and the record does not
show who translated them or assisted Dominguez in writing them.

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
78 UNITED STATES v. DOMINGUEZ BENITEZ
Opinion of the Court
5C1.2 (Nov. 1999) (hereinafter USSG).2 The safety valve
was important because it would allow the court to invoke 18
U. S. C. § 3553(f), authorizing a sentence below the otherwise
mandatory minimum in certain cases of diminished culpabil-
ity, the only chance Dominguez had for a sentence under 10
years. That chance turned on satisfying five conditions, one
going to Dominguez’s criminal history, which the agreement
did not address. The agreement did, however, warn Domin-
guez that it did not bind the sentencing court, and that Do-
minguez could not withdraw his plea if the court did not
accept the Government’s stipulations or recommendations.
At a hearing the next day, Dominguez changed his plea to
guilty. In the plea colloquy, the court gave almost all the
required Rule 11 warnings, including the warning that the
plea agreement did not bind the court, but the judge failed
to mention that Dominguez could not withdraw his plea if
the court did not accept the Government’s recommendations.
See Fed. Rule Crim. Proc. 11(c)(3)(B).3
When the Probation Office subsequently issued its report,
it found that Dominguez had three prior convictions, two of
them under other names, which neither defense counsel nor
the prosecutor had known at the time of the plea negotia-
tions. The upshot was that Dominguez was ineligible for
the safety valve, and so had no chance to escape the sentence
of 10 years. After receiving two more letters from Domin-
guez complaining about the quality of counsel’s representa-
2 The agreement also contemplated that Dominguez’s total offense level
under the Guidelines would be 27, after considering the safety valve and
a downward adjustment for acceptance of responsibility. Assuming so,
and assuming he had no (or minimal) criminal history, his sentence could
have been as low as 70 months. See USSG ch. 5, pt. A (sentencing table).
3 At the time of the plea hearing, the requirement appeared at Federal
Rule of Criminal Procedure 11(e)(2). It has not changed in substance.
We refer to the current Rule in the text of this opinion, and do likewise
for Rules 11(h) and 52(b), each of which has also received a stylistic
amendment.

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
79 Cite as: 542 U. S. 74 (2004)
Opinion of the Court
tion, the District Court sentenced Dominguez to the manda-
tory minimum. At the sentencing hearing, all counsel told
the court that they had thought Dominguez might at least
have been eligible for the safety-valve mitigation, but agreed
that with three convictions, he was not. Dominguez told the
court that he had “never had any knowledge about the points
of responsibility, the safety valve, or anything like that.”
App. 109. The court replied that in light of the “lengthy
change of plea proceedings” it was “difficult . . . to accept
what” Dominguez said. Id., at 112.
On appeal, Dominguez argued that the District Court’s
failure to warn him, as Rule 11(c)(3)(B) instructs, that he
could not withdraw his guilty plea if the court did not ac-
cept the Government’s recommendations required reversal.
After waiting for United States v. Vonn, 535 U. S. 55 (2002),
a divided panel of the Court of Appeals for the Ninth Circuit
agreed, 310 F. 3d 1221 (2002), and cited United States v.
Olano, 507 U. S. 725 (1993), in applying the plain-error stand-
ard. The court held that the District Court had indeed
erred; and that the error was plain, affected Dominguez’s
substantial rights, and required correction in the interests
of justice.
To show that substantial rights were affected, the Court
of Appeals required Dominguez to “prove that the court’s
error was not minor or technical and that he did not under-
stand the rights at issue when he entered his guilty plea.”
310 F. 3d, at 1225.4 The court rejected the Government’s
arguments that the written plea agreement or the District
Court’s other statements in the plea colloquy sufficiently ad-
vised Dominguez of his rights, given Dominguez’s inability
to speak English and the assurances of both counsel that
he would likely qualify under the safety-valve provision.
Judge Tallman dissented, with the warning that the majori-
4 Other Courts of Appeals employed different tests. See n. 8, infra.

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
80 UNITED STATES v. DOMINGUEZ BENITEZ
Opinion of the Court
ty’s analysis followed neither Vonn nor Circuit precedent.
310 F. 3d, at 1227–1228.
We granted certiorari, 540 U. S. 1072 (2003), on the ques-
tion “[w]hether, in order to show that a violation of Federal
Rule of Criminal Procedure 11 constitutes reversible plain
error, a defendant must demonstrate that he would not have
pleaded guilty if the violation had not occurred.” Pet. for
Cert. (I). We now reverse.
II
A
Because the Government agreed to make a nonbinding
sentencing recommendation, Rule 11(c)(3)(B) required the
court to “advise the defendant that the defendant has no
right to withdraw the plea if the court does not follow the
recommendation or request.” Rule 11, however, instructs
that not every violation of its terms calls for reversal of con-
viction by entitling the defendant to withdraw his guilty
plea. “A variance from the requirements of this rule is
harmless error if it does not affect substantial rights.” Fed.
Rule Crim. Proc. 11(h).5
In Vonn, we considered the standard that applies when a
defendant is dilatory in raising Rule 11 error, and held that
reversal is not in order unless the error is plain. 535 U. S.,
at 63; see Olano, supra, at 731–737. Although we explained
that in assessing the effect of Rule 11 error, a reviewing
court must look to the entire record, not to the plea proceed-
ings alone, Vonn, supra, at 74–75, we did not formulate the
standard for determining whether a defendant has shown, as
the plain-error standard requires, Olano, supra, at 734–735,
an effect on his substantial rights.
5 Congress gave the courts this instruction in 1983, in partial response
to this Court’s decision in McCarthy v. United States, 394 U. S. 459 (1969),
which it felt had caused too many reversals for reasons that were too
insubstantial. See United States v. Vonn, 535 U. S. 55, 66–71 (2002) (dis-
cussing the history of Rule 11(h)).

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
81 Cite as: 542 U. S. 74 (2004)
Opinion of the Court
B
It is only for certain structural errors undermining the
fairness of a criminal proceeding as a whole that even pre-
served error requires reversal without regard to the mis-
take’s effect on the proceeding. See Arizona v. Fulmi-
nante, 499 U. S. 279, 309–310 (1991) (giving examples).
Dominguez does not argue that either Rule 11 error gener-
ally or the Rule 11 error here is structural in this sense.6
Otherwise, relief for error is tied in some way to prejudi-
cial effect, and the standard phrased as “error that affects
substantial rights,” used in Rule 52, has previously been
taken to mean error with a prejudicial effect on the outcome
of a judicial proceeding. See Kotteakos v. United States, 328
U. S. 750 (1946). To affect “substantial rights,” see 28
U. S. C. § 2111, an error must have “substantial and injurious
effect or influence in determining the . . . verdict.” Kot-
teakos, supra, at 776.7 In cases where the burden of demon-
strating prejudice (or materiality) is on the defendant seek-
ing relief, we have invoked a standard with similarities
to the Kotteakos formulation in requiring the showing of
6 The argument, if made, would not prevail. The omission of a single
Rule 11 warning without more is not colorably structural. Cf. United
States v. Timmreck, 441 U. S. 780, 783–784 (1979) (holding that Rule 11
error without more is not cognizable on collateral review).
7 When the Government has the burden of addressing prejudice, as in
excusing preserved error as harmless on direct review of the criminal
conviction, it is not enough to negate an effect on the outcome of the case.
See Chapman v. California, 386 U. S. 18, 24 (1967) (“[T]he court must be
able to declare a belief that [constitutional error] was harmless beyond a
reasonable doubt”). When the Government has the burden of showing
that constitutional trial error is harmless because it comes up on collateral
review, the heightened interest in finality generally calls for the Govern-
ment to meet the more lenient Kotteakos standard. Brecht v. Abraham-
son, 507 U. S. 619, 638 (1993). If the burden is on a defendant to show
prejudice in the first instance, of course, it would be easier to show a
reasonable doubt that constitutional error affected a trial than to show a
likely effect on the outcome or verdict.

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
82 UNITED STATES v. DOMINGUEZ BENITEZ
Opinion of the Court
“a reasonable probability that, but for [the error claimed],
the result of the proceeding would have been different.”
United States v. Bagley, 473 U. S. 667, 682 (1985) (opinion of
Blackmun, J.) (adopting the prejudice standard of Strickland
v. Washington, 466 U. S. 668, 694 (1984), for claims under
Brady v. Maryland, 373 U. S. 83 (1963) (internal quotation
marks omitted)); 473 U. S., at 685 (White, J., concurring in
part and concurring in judgment) (same).8
No reason has appeared for treating the phrase “affecting
substantial rights” as untethered to a prejudice requirement
when applying Olano to this nonstructural error, or for
doubting that Bagley is a sensible model to follow. As Vonn
makes clear, the burden of establishing entitlement to relief
for plain error is on the defendant claiming it, and for several
reasons, we think that burden should not be too easy for
defendants in Dominguez’s position. First, the standard
should enforce the policies that underpin Rule 52(b) gener-
ally, to encourage timely objections and reduce wasteful re-
versals by demanding strenuous exertion to get relief for
unpreserved error. See Vonn, 535 U. S., at 73. Second, it
should respect the particular importance of the finality of
guilty pleas, which usually rest, after all, on a defendant’s
8 This standard is similar to one already applied by some Courts of Ap-
peals, though those courts have not drawn a direct connection to Strick-
land and Bagley, and in some cases understood themselves to be review-
ing for harmless, rather than plain, error. See United States v. Martinez,
289 F. 3d 1023, 1029 (CA7 2002) (on plain-error review, asking “whether
any Rule 11 violations would have likely affected [the defendant’s] willing-
ness to plead guilty”); see also United States v. Johnson, 1 F. 3d 296,
302 (CA5 1993) (en banc) (on harmless-error review, asking “whether the
defendant’s knowledge and comprehension of the full and correct informa-
tion would have been likely to affect his willingness to plead guilty”);
cf. United States v. Olano, 507 U. S. 725, 734–735 (1993) (the main differ-
ence as to substantial rights in the harmless- and plain-error analyses is
that the burden of persuasion shifts from Government to defendant).

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
83 Cite as: 542 U. S. 74 (2004)
Opinion of the Court
profession of guilt in open court, and are indispensable in
the operation of the modern criminal justice system. See
United States v. Timmreck, 441 U. S. 780, 784 (1979). And,
in this case, these reasons are complemented by the fact,
worth repeating, that the violation claimed was of Rule 11,
not of due process.
We hold, therefore, that a defendant who seeks reversal of
his conviction after a guilty plea, on the ground that the dis-
trict court committed plain error under Rule 11, must show
a reasonable probability that, but for the error, he would not
have entered the plea. A defendant must thus satisfy the
judgment of the reviewing court, informed by the entire rec-
ord, that the probability of a different result is “sufficient
to undermine confidence in the outcome” of the proceeding.
Strickland, supra, at 694; Bagley, supra, at 682 (opinion of
Blackmun, J. (internal quotation marks omitted)).9
9 One significant difference, however, between Rule 11 claims and claims
under Strickland and Brady v. Maryland, 373 U. S. 83 (1963), is that the
latter may be raised in postconviction proceedings such as a petition for
habeas corpus, or a motion to vacate a sentence under 28 U. S. C. § 2255.
Those proceedings permit greater development of the record. See Mas-
saro v. United States, 538 U. S. 500 (2003) (Strickland claims are not proce-
durally defaulted when brought for the first time on § 2255, because of the
advantages of that form of proceeding for hearing such cases). For Rule
11 claims, by contrast, that way is open only in the most egregious cases.
Timmreck, supra; see also Vonn, 535 U. S., at 64 (noting that Rule 11(h)
was not meant to disturb Timmreck). A defendant will rarely, if ever, be
able to obtain relief for Rule 11 violations under § 2255; and relief on direct
appeal, given the plain-error standard that will apply in many cases, will
be difficult to get, as it should be. Cf. United States v. Raineri, 42 F. 3d
36, 45 (CA1 1994) (Boudin, J.) (“[J]ust as there are many fair trials but few
perfect ones, so flaws are also to be expected in Rule 11 proceedings”).
Our rule does not, however, foreclose relief altogether. The
reasonable-probability standard is not the same as, and should not be con-
fused with, a requirement that a defendant prove by a preponderance of
the evidence that but for error things would have been different. See
Kyles v. Whitley, 514 U. S. 419, 434 (1995).

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
84 UNITED STATES v. DOMINGUEZ BENITEZ
Opinion of the Court
C
What we have already said points to why the test applied
by the Court of Appeals in this case fell short. Its first ele-
ment was whether the error was “minor or technical,” 310
F. 3d, at 1225, a phrase it took from United States v. Graibe,
946 F. 2d 1428 (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 examina-
tion of the effect of the omitted warning on a defendant’s
decision, a failing repeated to a significant extent by the sec-
ond element of the Ninth Circuit’s test, taken from United
States v. Minore, 292 F. 3d 1109 (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 consider-
ation of any record evidence tending to show that a misun-
derstanding 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.10
Relevant evidence that the Court of Appeals thus passed
over in this case included Dominguez’s statement to the Dis-
trict Court that he did not intend to go to trial, and his coun-
10 This is another point of contrast with the constitutional question
whether a defendant’s guilty plea was knowing and voluntary. We have
held, for example, that when the record of a criminal conviction obtained
by guilty plea contains no evidence that a defendant knew of the rights
he was putatively waiving, the conviction must be reversed. Boykin v.
Alabama, 395 U. S. 238, 243 (1969). We do not suggest that such a convic-
tion could be saved even by overwhelming evidence that the defendant
would have pleaded guilty regardless.

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
85 Cite as: 542 U. S. 74 (2004)
Opinion of the Court
sel’s confirmation of that representation, made at the same
hearing. The neglected but relevant considerations also in-
cluded 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 Domin-
guez 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 partic-
ular 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 con-
sidering in a Strickland or Brady analysis. When the rec-
ord 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 ab-
sent 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 assess-
ment of his strategic position. And even if there were rea-
son to think the warning from the bench could have mat-
tered, 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.

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
86 UNITED STATES v. DOMINGUEZ BENITEZ
Scalia, J., concurring in judgment
* * *
We reverse the judgment of the Court of Appeals and re-
mand the case for further proceedings consistent with this
opinion.
It is so ordered.
Justice Scalia, concurring in the judgment.
I agree with much of the Court’s opinion and concur in its
disposition of the case. I do not, however, agree with its
holding that respondent need not show prejudice by a pre-
ponderance of the evidence. Ante, at 83, n. 9.
By my count, this Court has adopted no fewer than four
assertedly different standards of probability relating to the
assessment of whether the outcome of trial would have been
different if error had not occurred, or if omitted evidence
had been included. See Chapman v. California, 386 U. S.
18, 24 (1967) (adopting “harmless beyond a reasonable doubt”
standard for preserving, on direct review, conviction ob-
tained in a trial where constitutional error occurred); Brecht
v. Abrahamson, 507 U. S. 619, 637 (1993) (rejecting Chap-
man in favor of the less defendant-friendly “ ‘substantial and
injurious effect or influence’ ” standard of Kotteakos v.
United States, 328 U. S. 750 (1946), for overturning convic-
tion on collateral review); United States v. Agurs, 427 U. S.
97, 111–113 (1976) (rejecting Kotteakos for overturning con-
viction on the basis of violations of Brady v. Maryland, 373
U. S. 83 (1963), in favor of an even less defendant-friendly
standard later described in Strickland v. Washington, 466
U. S. 668, 694 (1984), as a “reasonable probability”); id., at
693–694 (distinguishing the “reasonable probability” stand-
ard from the still yet less defendant-friendly “more likely
than not” standard applicable to claims of newly discovered
evidence). See generally Kyles v. Whitley, 514 U. S. 419,
434–436 (1995). Such ineffable gradations of probability
seem to me quite beyond the ability of the judicial mind (or
any mind) to grasp, and thus harmful rather than helpful

542US1 Unit: $U60 [10-25-06 13:01:07] PAGES PGT: OPIN
87 Cite as: 542 U. S. 74 (2004)
Scalia, J., concurring in judgment
to the consistency and rationality of judicial decisionmaking.
That is especially so when they are applied to the hypothesiz-
ing of events that never in fact occurred. Such an enter-
prise is not factfinding, but closer to divination.
For purposes of estimating what would have happened,
it seems to me that the only serviceable standards are the
traditional “beyond a reasonable doubt” and “more likely
than not.” We should not pretend to a higher degree of pre-
cision. I would not, therefore, extend our “reasonable prob-
ability” standard to the plain-error context. I would hold
that, where a defendant has failed to object at trial, and thus
has the burden of proving that a mistake he failed to prevent
had an effect on his substantial rights, he must show that
effect to be probable, that is, more likely than not.