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 Procedure 11. Because the claim of Rule 11 error was not preserved by timely objection, the plain-error standard of Rule 52(b) applies, with its requirement to prove effect on substantial 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.
In early May 1999, a confidential informant working with law enforcement arranged through respondent Carlos Dominguez 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 selling the methamphetamine and gave information about his supplier and confederates.
In September 1999, the District Court received the first of several letters from Dominguez,
Shortly after that, the parties agreed that Dominguez would plead guilty to the conspiracy, and the Government would dismiss the possession charge. The Government stipulated 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),
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 negotiations. 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 Dominguez complaining about the quality of counsel's representation,
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 accept 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 standard. 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 understand the rights at issue when he entered his guilty plea." 310 F. 3d, at 1225.
We granted certiorari, 540 U.S. 1072 (2003), on the question "[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.
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 conviction 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).
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 proceedings 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.
It is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires reversal without regard to the mistake's effect on the proceeding. See Arizona v. Fulminante, 499 U.S. 279, 309-310 (1991) (giving examples). Dominguez does not argue that either Rule 11 error generally or the Rule 11 error here is structural in this sense.
Otherwise, relief for error is tied in some way to prejudicial 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." Kotteakos, supra, at 776.
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) generally, to encourage timely objections and reduce wasteful reversals 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
We hold, therefore, that 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. A defendant must thus satisfy the judgment of the reviewing court, informed by the entire record, 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 mark omitted)).
What we have already said points to why the test applied by the Court of Appeals in this case fell short. Its first element 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 examination of the effect of the omitted warning on a defendant's decision, a failing repeated to a significant extent by the second 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 consideration of any record evidence tending to show that a misunderstanding 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.
Relevant evidence that the Court of Appeals thus passed over in this case included Dominguez's statement to the District Court that he did not intend to go to trial, and his counsel's
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 considering in a Strickland or Brady analysis. When the record 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 absent 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 assessment of his strategic position. And even if there were reason to think the warning from the bench could have mattered, 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.
* * *
We reverse the judgment of the Court of Appeals and remand 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 preponderance 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 obtained in a trial where constitutional error occurred); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (rejecting Chapman 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 conviction on collateral review); United States v. Agurs, 427 U.S. 97, 111-113 (1976) (rejecting Kotteakos for overturning conviction 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" standard 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
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 precision. I would not, therefore, extend our "reasonable probability" 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.
Our rule does not, however, foreclose relief altogether. The reasonable-probability standard is not the same as, and should not be confused 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).