NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30021
Plaintiff-Appellee, D.C. No.
2:17-cr-00135-TSZ-4
v.
YUNZHONG CHEN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted November 5, 2018
Seattle, Washington
Before: McKEOWN and FRIEDLAND, Circuit Judges, and GAITAN,** District
Judge.
Yunzhong Chen appeals his sentence following his plea of guilty to
Conspiracy to Use a Communication Facility to Promote Prostitution in violation
of 18 U.S.C. §§ 371 and 1952, as well as the district court’s denial of Chen’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
request for a transcript at governmental expense reflecting his change-of-plea
hearing. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
Chen makes three arguments. First, he asserts that the Government breached
the plea agreement at sentencing. Second, Chen argues that the district court’s
comments at sentencing about his immigration status demonstrate that the district
court improperly considered his national origin when it imposed a one-year
sentence instead of the 364 days recommended by the Government, despite the
court’s awareness that the one-day difference might carry adverse immigration
consequences. And, third, Chen contends that delay stemming from the transcript
denial violates his right to due process. Because we conclude that there was no
breach, and that the sentence and transcript delay did not violate Chen’s
constitutional rights, we affirm.
“Plea agreements are contracts, and the government is held to the literal
terms of the agreement.” United States v. Johnson, 187 F.3d 1129, 1134 (9th Cir.
1999). Although a sentencing recommendation need not be made
enthusiastically, when the government obligates itself to make a recommendation
at the low end of the guidelines range, it may not introduce information that serves
no purpose but “to influence the court to give a higher sentence.” Id. at
1135. Here, the Government stipulated to Probation’s calculation of the sentence,
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which included a minor role reduction, and recommended a sentence of 364 days
imprisonment, thereby satisfying its promises to agree that Chen was a minor
participant and to recommend a sentence below fifteen months. Chen admits that
the Government followed the letter of the agreement, but he argues the
Government’s statements contravened the agreement’s spirit by inflating his role in
the conspiracy and hinting at additional criminal acts. But the plea agreement
expressly allowed the parties to introduce additional facts, and the Government’s
arguments were properly responsive to Chen’s request for home confinement, so
we cannot conclude that they served no purpose but “to influence the court to give
a higher sentence.” Id. Accordingly, there was no breach.
Chen’s claim that the district court improperly considered his national origin
in fashioning the sentence is also unavailing. As a preliminary matter, Chen’s
appellate waiver does not prevent him from asserting on appeal that his sentence
violates the Constitution because it reflects bias against his national origin or
immigration status. See United States v. Odachyan, 749 F.3d 798, 801 (9th Cir.
2014). In addressing claims of anti-immigrant bias in sentencing, we ask whether
the judge’s statements reflected “such a ‘high degree of favoritism or antagonism
as to make fair judgment impossible.’” Id. at 802 (quoting Liteky v. United States,
510 U.S. 540, 555 (1994)). Chen argues, however, that Odachyan does not control
because his claim is that the district court improperly considered his national
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origin, not that the court was biased. Pointing to our decision in United States v.
Borrero-Isaza, 887 F.2d 1349 (9th Cir. 1989), Chen contends that if we conclude
the district court at least “partially based the sentence on [his] national origin,” we
must reverse the sentence. Id. at 1355. We hold that, under either standard,
Chen’s claim fails because there is insufficient evidence that the court based
Chen’s sentence on his national origin rather than on a permissible basis, like the
severity of Chen’s offense. The court’s comments, including that Chen was a
“visitor to this country” who “needs to go to jail,” were inappropriate and
unnecessary, but they did not affect the outcome at sentencing.
Finally, Congress has made transcripts available automatically on direct
appeal for indigent criminal defendants, so the district court had no valid basis for
denying Chen’s request for a copy of his change-of-plea hearing transcript. See
United States v. MacCollom, 426 U.S. 317, 321 n.1 (1976). An extreme delay in
the processing of an appeal because of lack of access to a transcript may amount to
a violation of due process. United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.
1990). But “a due process violation cannot be established absent a showing of
prejudice to the appellant.” Id. Chen cannot show prejudice here—the district
court’s denial delayed his appeal for only a few months, so he has not been
deprived of the opportunity to fully litigate his claims on direct or collateral
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review.1
AFFIRMED.
1
Chen initially stated that he would wait to argue that his plea was not
knowing, intelligent, and voluntary until a collateral review proceeding in which he
could supplement the record, but he later requested an evidentiary hearing on this
issue. Because this argument was not included in his opening brief, we decline to
consider it. See AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 638 (9th Cir.
2012) (quoting United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992)) (failing
to “specifically and distinctly” argue an issue in an opening brief forfeits the
argument).
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