NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10607
Plaintiff - Appellee, D.C. No. 2:12- cr-00177- PGR-1
v.
MEMORANDUM*
IVHAN DANIEL HERRERA-CHIANG,
AKA Ivhan Herrera, AKA Ivhan Herrera-
Chiang, AKA La Mujer,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted August 12, 2015
San Francisco, California
Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.
Ivhan Herrera-Chiang (“Herrera”) appeals his convictions for three counts of
bribery. He contends that the district court committed reversible error under Fed.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
R. Crim. P. 11(c)(1) by impermissibly participating in plea negotiations. We have
jurisdiction under 28 U.S.C. § 1291, and we dismiss the appeal.
I. Standard of Review
Because Herrera did not raise his Rule 11 argument before the district court,
our review of that argument is for plain error. See United States v. Kyle, 734 F.3d
956, 962-63 (9th Cir. 2013) (assuming without deciding that plain error review
applies to unpreserved Rule 11 error); United States v. Thompson, 770 F.3d 689,
694 (8th Cir. 2014) (applying plain error review to unpreserved Rule 11 error);
United States v. Davila, 749 F.3d 982, 992-93 (11th Cir. 2014) (same). We review
de novo whether Herrera waived his right to appeal. United States v. Arias-
Espinosa, 704 F.3d 616, 618 (9th Cir. 2012).
II. Analysis
1. The government urges us to reject Herrera’s appeal because the plea
agreement Herrera signed contained a waiver of his right of appeal. A waiver of
the right of appeal is valid “only if knowingly and voluntarily made.” United
States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996). But also, however,
“Waivers of appeal must ‘stand or fall with the agreement of which they are a
part.’” United States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999)
(quoting United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995)). Thus, under
2
the circumstances of this case, whether Herrera’s waiver bars his appeal depends
on whether his Rule 11 challenge has merit. We, thus, proceed to an examination
of the merits.
2. Under Fed. R. Crim. P. 11(c)(1), while plea negotiations are ongoing,
the district court “must refrain from all forms of plea discussions.” United States
v. Bruce, 976 F.2d 552, 556 (9th Cir. 1992) (quoting United States v. Adams, 634
F.2d 830, 835 (5th Cir. 1981)) (emphasis in original). Rule 11 is “an absolute
prohibition on all forms of judicial participation in . . . the plea negotiation
process.” Id. (emphasis and alteration in original).
During pre-trial hearings, the district court made a number of statements to
Herrera and his counsel regarding a potential plea. The district court asked
Herrera’s counsel: “is there no possibility that [the case] can resolve itself short of
trial?” Later, the district court asked the parties whether Herrera “[saw] the light of
day” regarding is possible sentence under the Sentencing Guidelines if he went to
trial. The court also described a potential plea as “a realistic opportunity for
[Herrera] to not spend the rest of his life incarcerated.” Shortly after these
statements, Herrera accepted the government’s proposed plea agreement.1
1
The government extended the period that its plea offer would remain
open at the implied request of the court.
3
Herrera contends that these statements amount to impermissible judicial
participation under Rule 11. Even assuming, however, that the court’s statements
were improper, Herrera has not shown “a reasonable probability that, but for the
error, he would not have entered the plea.” United States v. Davila, 133 S. Ct.
2139, 2147 (2013) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004)).
Herrera’s only evidence of causation is that, prior to the district court’s
comments, he was unwilling to accept a plea agreement, but changed his mind
shortly after the comments were made. Additionally, at his sentencing, which
occurred several months after his change of plea hearing, the district court asked
Herrera whether the court’s comments had influenced his decision to change his
plea. Herrera responded that the court’s comments were not a factor in his
decision. On this record, “‘it is impossible to know . . . what [Herrera] would have
done,’ absent the Rule 11 error.” United States v. Arqueta-Ramos, 730 F.3d 1133,
1142 (9th Cir. 2013) (quoting United States v. Kennell, 15 F.3d 134, 136-37 (9th
Cir. 1994)). Accordingly, Herrera has not met his burden of showing that the error
affected his substantial rights.
Because Herrera’s Rule 11 argument lacks merit, we conclude that his plea
agreement is valid. Herrera therefore has waived his statutory right of appeal.
4
III. Conclusion
Herrera’s appeal from the judgment of the district court is DISMISSED.
5
FILED
REINHARDT, Circuit Judge dissenting: AUG 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I have no doubt that the district judge unlawfully interfered in the plea
negotiation process when he stated in Herrera-Chiang’s presence, inter alia, that
Herrera-Chiang may not “see the light of day” and that the plea bargain
represented “a realistic opportunity for him to not spend the rest of his life
incarcerated.” In United States v. Davila, the Supreme Court acknowledged that
the timing of a plea matters when determining whether such an error was
prejudicial. 133 S. Ct. 2139, 2149 (2013) (“Had Davila’s guilty plea followed
soon after the Magistrate Judge told Davila that pleading guilty might be ‘the best
advice’ a lawyer could give him . . . the error would likely qualify as prejudicial.”).
Here, Herrera-Chiang changed his plea only four days after the status conference at
which the district judge made his final impermissible remarks. In my view, it is
not possible to conclude without an evidentiary record that Herrera-Chiang did so
for reasons other than the district court’s improper interference in the plea
bargaining process. Under the circumstances, I would either remand for a hearing
on the question or remand for resentencing.
I respectfully dissent.