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U.S. v. BARRIOS-GUTIERREZ

No. 99-10148.

255 F.3d 1024 (2001)

UNITED STATES of America, Plaintiff-Appellee, v. Fabian BARRIOS-GUTIERREZ, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Opinion Filed July 3, 2001

Attorney(s) appearing for the Case

COUNSEL

Atmore L. Baggot (argued), Apache Junction, Arizona, for the defendant-appellant.

Michael A. Rotker (argued), attorney, United States Department of Justice, Washington, D.C., Jose de Jesus Rivera, United States Attorney, Georgia B. Ellexson, Assistant United States Attorney, Linda C. Boone, Assistant United States Attorney, Phoenix, Arizona, for the plaintiff-appellee.

Before: MARY M. SCHROEDER, CHIEF JUDGE, AND PROCTER HUG, Jr., HARRY PREGERSON, STEPHEN REINHARDT, DIARMUID F. O'SCANNLAIN, THOMAS G. NELSON, A. WALLACE TASHIMA, SUSAN P. GRABER, RONALD M. GOULD, MARSHA S. BERZON, and JOHNNIE B. RAWLINSON, Circuit Judges.

Argued and Submitted March 22, 2001 — San Francisco, California

En Banc Opinion Filed July 3, 2001

Opinion by Judge O'SCANNLAIN; Dissent by Judge BERZON

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether the trial judge must formally determine at the plea colloquy whether a statutorily-authorized sentence enhancement will apply as a matter of law, notwithstanding the defendant's acknowledgment in open court that he...

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