Whether the plain error standard of Vonn/Dominguez Benitez applies in the context of violations of Fed.R.Crim.P. 11(b)(1)(N), where the defendant raises an omission in the guilty plea inquiry as a basis for the non-enforcement of an appeal waiver, not to vacate the guilty plea

QUESTION PRESENTED In United States v. Vonn, 535 U.S. 55 (2002), the Court held that, when a judge at a guilty plea hearing fails to advise a defendant of warnings required by Federal Rule of Criminal Procedure 11, a defendant who did not object but later seeks to withdraw the guilty plea must satisfy the plain-error standard of Federal Rule of Criminal Procedure 52(b). Id. at 58-59. Later, in “formulat[ing] the standard for determining whether [such] a defendant has shown... an effect on his substantial rights,” the Court held: “[A] defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11,” must show a reasonable probability that, “but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 80, 83 (2004). Both Dominguez Benitez and Vonn concerned defendants who sought to set aside their guilty pleas. But the circuits are divided on whether the Vonn/Domingquez Benitez standard applies to errors under Rule 11(b) (1) (N), when a defendant raises an omission in the Rule 11 plea colloquy as a basis for the non-enforcement of an appeal waiver, not to attack the underlying conviction. See Fed.R.Crim.P. 11(b) (1) (N) (requiring courts to inform defendants of “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence”). i The Second Circuit, recognizing this split, requires a defendant seeking to void an appeal waiver to show that “but for the error” at the guilty plea hearing, the defendant would not have pleaded guilty. Three other circuits, however -the Third, Sixth, and Ninth -have expressly declined to extend Vonn/Dominguez Benitez to violations of Fed.R.Crim.P. 11(b) (1) (N) where the defendant does not seek to challenge the conviction. The question presented is: Whether the plain error standard of Vonn/Dominguez Benitez applies in the context of violations of Fed.R.Crim.P. 11(b) (1) (N), where the defendant raises an omission in the guilty plea inquiry as a basis for the non-enforcement of an appeal waiver, not to vacate the guilty plea -an issue that divides the circuits. ii