FILED
NOT FOR PUBLICATION SEP 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30169
Plaintiff - Appellee, D.C. No. 2:12-cr-00047-MJP-1
v.
MEMORANDUM*
HERMINIO SILVA, aka Aguilar, aka
Gavilan,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Submitted August 27, 2014**
Seattle, Washington
Before: NOONAN, GRABER, and CHRISTEN, Circuit Judges.
Defendant Herminio Silva pleaded guilty to one count each of conspiracy to
distribute controlled substances, in violation of 21 U.S.C. §§ 841 and 846; and
distribution of cocaine, distribution of heroin, and possession of methamphetamine
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
with intent to distribute, each in violation of § 841. Defendant timely appeals,
arguing that the district court improperly participated in plea negotiations, in
violation of Federal Rule of Criminal Procedure 11(c)(1), and that, in the
alternative, the district court’s comments rendered his plea involuntary. Reviewing
de novo whether the district court improperly participated in plea negotiations,
United States v. Bruce, 976 F.2d 552, 555 (9th Cir. 1992), and whether a guilty
plea was voluntary, United States v. Forrester, 616 F.3d 929, 934 (9th Cir. 2010),
we affirm.
1. The district court did not violate Rule 11(c)(1) because it did not take part
in "any discussion or communication regarding the sentence to be imposed prior to
the entry of a plea." Bruce, 976 F.2d at 556 (internal quotation marks omitted). In
response to comments from Defendant and his lawyer that Defendant wanted to
accept responsibility, the district court said that "it’s always [Defendant’s] option
to go forward and plead. He doesn’t necessarily have to have a deal." That
comment is easily distinguishable from remarks in cases in which the sentencing
court violated Rule 11 by encouraging the defendant to accept a plea agreement in
order to avoid the risk of a more severe sentence at trial. See, e.g., United States v.
Davila, 133 S. Ct. 2139, 2143–44 (2013); Bruce, 976 F.2d at 555. Here, by
contrast, the district court took "no part whatever" in pre-plea sentencing
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discussions, Bruce, 976 F.2d at 556, and exerted no "implicit or explicit pressure to
settle . . . on terms favored by the judge," United States v. Frank, 36 F.3d 898, 903
(9th Cir. 1994).
2. The district court’s comment did not render Defendant’s plea involuntary.
After reviewing the record in its entirety, United States v. Kaczynski, 239 F.3d
1108, 1114 (9th Cir. 2001), we conclude that the plea was voluntary. Defendant
stated under oath that his plea was voluntary, and we give such statements
significant weight. United States v. Andrade-Larrios, 39 F.3d 986, 990–91 (9th
Cir. 1994). Furthermore, the strength of the government’s case against Defendant
and his stated desire to accept responsibility—and receive whatever sentencing
credit might be available—provided a rational basis for his change of plea. Such a
rational basis alone may serve as evidence of a plea’s voluntariness. Kaczynski,
239 F.3d at 1115. The district court did not suggest that it preferred that Defendant
plead guilty, or that it would be unable to conduct a fair trial if Defendant chose to
proceed to trial. Accordingly, Defendant’s plea was voluntary because he
remained able to "make a free choice among the acceptable alternatives available."
United States v. Hernandez, 203 F.3d 614, 618 n.5 (9th Cir. 2000), overruled on
other grounds by Indiana v. Edwards, 554 U.S. 164 (2008).
AFFIRMED.
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