USA V. JASON DAVID, No. 20-50274 (9th Cir. 2022)
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After pleading guilty to charges stemming from possessing stolen mail, credit cards, and other financial devices, Defendant was sentenced to 36 months in prison. He appealed his custodial sentence. But, under the terms of Defendant’s plea agreement, he waived the right to appeal his sentence. Defendant argued the court should invalidate the waiver because the district court violated Rule 11 of the Federal Rules of Criminal Procedure. That Rule provides that the district court must address the defendant “personally” and determine that the defendant understands the terms of any appellate waiver. Fed. R. Crim. Proc. 11(b)(1)(N). Defendant asserted that the district court failed to follow this requirement and so he should be permitted to appeal his sentence.
The Ninth Circuit affirmed. The court reviewed for plain error because Defendant failed to object to the alleged violation during the plea colloquy. The court cited several factors in the record including the plea agreement’s specificity as to the scope of the appellate waiver, the counsel’s certification of her discussion and advice concerning the consequences of the entering the agreement, and Defendant’s assurances during the change-of-plea hearing and plea colloquy that he understood the proceedings and the agreement. The court wrote that nothing in the record supports a reasonable probability that Defendant would not have entered the guilty plea had the district court separately addressed the appellate waiver as Rule 11 requires. Thus, the court held that the appellate waiver is enforceable, and did not consider Defendant’s challenges to his custodial sentence.
Court Description: Criminal Law. The panel affirmed a custodial sentence in a case in which the defendant argued on appeal that his appellate waiver is unenforceable because the district court violated Fed. R. Crim. P. 11(b)(1)(N), which provides that the district court must address the defendant personally and determine that the defendant understands the terms of any appellate waiver. Because the defendant failed to object to the alleged violation during the plea colloquy, the panel reviewed for plain error. Noting that the defendant doesn’t claim that he did not knowingly and voluntarily agree to the appellate waiver, the panel wrote that the record shows that the defendant understood that he was waiving his right to appeal his sentence. The panel cited several factors in the record including the plea agreement’s specificity as to the scope of the appellate waiver, counsel’s certification of her discussion and advice concerning the consequences of the entering the agreement, the defendant’s assurances during the change-of- plea hearing and plea colloquy that he understood the proceedings and the agreement, and the fact that the government raised the appellate waiver before the end of the change-of-plea hearing. The panel wrote that nothing in the record supports a reasonable probability that the defendant would not have entered the guilty plea had the district court separately addressed the appellate waiver as Rule 11 requires. The panel concluded that given these facts, and on UNITED STATES V. DAVID 3 this record, the plea colloquy at most constituted a technical violation of Rule 11, but not a plain error that affected the defendant’s substantial rights or an error that seriously affected the fairness or integrity of his plea. The panel thus held that the appellate waiver is enforceable, and did not consider the defendant’s challenges to his custodial sentence. In a concurrently filed memorandum disposition, the panel addressed the defendant’s objections to conditions of his supervised release—affirming in part, and vacating and remanding in part.
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