NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10226
Plaintiff-Appellee, D.C. No.
3:12-cr-00300-CRB-1
v.
MATTHEW WORTHING, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted August 14, 2020**
San Francisco, California
Before: HAWKINS and CHRISTEN, Circuit Judges, and GRITZNER,*** District
Judge.
Matthew Worthing entered a plea of guilty on two counts of bid-rigging at a
real estate foreclosure sale and two counts of conspiracy to commit mail fraud. He
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
was sentenced to thirty days in prison followed by two years of supervised release.
On appeal, Worthing contends that his guilty-plea is invalid, and the thirty-day
sentence is procedurally and substantively unreasonable. We have jurisdiction under
28 U.S.C. § 1291. We dismiss in part pursuant to the enforceable appeal waiver
contained in Worthing’s plea agreement and affirm in part. See United States v.
Watson, 582 F.3d 974, 988 (9th Cir. 2009).
The government requests that we dismiss the appeal in full because Worthing
waived his right to appeal his conviction and his right to challenge a sentence within
or below the stipulated Guidelines range. We review de novo whether Worthing has
waived his right to appeal. See United States v. Arias-Espinosa, 704 F.3d 616, 618
(9th Cir. 2012). A waiver is enforceable if (1) “the waiver is knowingly and
voluntarily made,” and (2) “the language of the waiver encompasses [the
defendant’s] right to appeal on the grounds raised.” United States v. Lo, 839 F.3d
777, 783 (9th Cir. 2016) (citation omitted).
Looking first to Worthing’s waiver of his right to appeal the conviction, the
“circumstances surrounding the signing and entry of the plea agreement” indicate
Worthing “agreed to its terms knowingly and voluntarily.” United States v.
Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996). Worthing’s written plea agreement
expressly stated that Worthing acknowledged and waived his right to appeal the
conviction. Worthing signed his plea agreement, acknowledging he had read and
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agreed to its terms. The district court inquired whether, and Worthing confirmed
under oath that, he had read, discussed with his attorney, and understood the terms
of his plea agreement. And Worthing confirmed that he had not been threatened or
otherwise forced to enter the plea agreement. The broad language of the general
appeal waiver encompasses Worthing’s challenges to his conviction. See United
States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011) (“We have consistently read
general waivers of the right to appeal to cover all appeals, even an appeal from the
denial of a motion to withdraw a guilty plea.”).
Nevertheless, Worthing contends his appeal waiver is unenforceable because
the district court failed to make several advisements required under Federal Rule of
Criminal Procedure 11(b)(1). Although the “appeal waiver will not apply if . . .
[Worthing’s] guilty plea failed to comply with Fed. R. Crim. P. 11,” Watson, 582
F.3d at 987 (quoting United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007)),
Worthing has failed to identify a Rule 11 error that invalidates his guilty plea, see
United States v. Escamilla-Rojas, 640 F.3d 1055, 1060–61 (9th Cir. 2011).
Worthing confirmed in district court that he understood the terms of his plea
agreement. The district court asked the prosecutor to recite the maximum penalties,
the essential elements of the charges, as well as the nature of the charges, and
Worthing confirmed his understanding. The plea agreement, which Worthing
signed, also recited the relevant information regarding restitution, special
3 18-10226
assessments, and the nature of the charges. During the plea hearing, the district court
directed Worthing to the pages of the plea agreement discussing the bases of the
charges and confirmed that Worthing had fully reviewed and understood that
information. On this record, there is no reversible error. See United States v.
Villalobos, 333 F.3d 1070, 1074 (9th Cir. 2003) (error is harmless if record shows
defendant “‘was aware of the rights at issue when he entered his guilty plea’ or that
the district court’s Rule 11 error was simply ‘minor or technical’” (quoting United
States v. Minore, 292 F.3d 1109, 1119 (9th Cir. 2002)); see also United States v.
Vonn, 294 F.3d 1093, 1094 (9th Cir. 2002) (no plain error in failure to make Rule
11(b)(1)(A) advisement where government did not initiate perjury action against
defendant and record showed plea was voluntary).
The record does not support Worthing’s contention that the district court
improperly interfered with plea negotiations in connection with his motion to
withdraw his guilty plea. See Fed. R. Crim. P. 11(c)(1).
Finally, although the district court failed to address the sentencing appeal
waiver during the plea hearing as required by Rule 11(b)(1)(N), see United States v.
Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004), Worthing’s sentence-related
contentions fail on the merits. Worthing has not demonstrated that the district court
committed plain error in its explanation of the sentence or consideration of the 18
U.S.C. § 3553(a) sentencing factors. See United States v. Valencia-Barragan, 608
4 18-10226
F.3d 1103, 1108 (9th Cir. 2010). The district court did not abuse its discretion by
imposing the below Guidelines sentence. Gall v. United States, 552 U.S. 38, 51
(2007). The sentence is substantively reasonable in light of the totality of the
circumstances and the § 3553(a) factors. See id.
DISMISSED, in part, and AFFIRMED.
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