United States v. Ian Harris ( 2017 )

FILED
NOT FOR PUBLICATION
DEC 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30289
Plaintiff-Appellee, D.C. No.
2:13-cr-00053-JLQ-1
v.
IAN MICHAEL HARRIS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, District Judge, Presiding
Argued and Submitted October 2, 2017
Seattle, Washington
Before: WARDLAW, CLIFTON, and OWENS, Circuit Judges.
Ian Michael Harris appeals his conviction and sentence for conspiracy and
possession with intent to distribute 50 grams or more of methamphetamine, entered
pursuant to a plea agreement with the government. Because Harris’s appeal is
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ultimately barred by the waiver of appellate rights contained in the plea agreement,
we dismiss.
However, because two of Harris’s claims on appeal—if successful—would
vitiate his appeal waiver, we must address those claims here. See United States v.
Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (“An appeal waiver will not apply if: 1) a
defendant’s guilty plea failed to comply with Fed. R. Crim. P. 11 . . . or 4) the
sentence violates the law.”); see also id. (“A sentence is illegal if it . . . violates the
Constitution.”).
1. We do not need to decide whether the district court might have
violated Federal Rule of Criminal Procedure 11’s prohibition on judicial
participation in plea discussions by advising Harris that the withdrawal of his
guilty plea “would be over my strong advice,” see United States v. Garfield, 987
F.2d 1424, 1426–27 (9th Cir. 1993), because Harris has not established that any
error affected his substantial rights or seriously affected the integrity of the judicial
proceedings, as he must in order to prevail under the plain error standard.1 See
United States v. Olano, 507 U.S. 725, 732 (1993). The evidence against
Harris—even discounting the fruits of the search of his home—was overwhelming.
1
Harris concedes that the plain error standard applies. See United States v.
Watson, 582 F.3d 974, 987 (9th Cir. 2009) (applying plain error to decide whether
unpreserved Rule 11 error vitiated appeal waiver).
2
It included: a controlled purchase of 200 grams of methamphetamine directly from
Harris; additional methamphetamine, scales, packaging material, and five firearms,
all seized during a search of Harris’s business and vehicle; and the potential
testimony of Harris’s coconspirators. Moreover, Harris had independent
knowledge that the government planned to file a second 21 U.S.C. § 851information if the case went to trial, which would have triggered a mandatory life
sentence. Given these factors, we cannot say that there was “a reasonable
probability that, but for the [possible] error, [Harris] would not have entered the
plea.” United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015) (internal
quotation marks omitted).
2. Harris’s argument that the district court constructively denied him
counsel in violation of the Sixth Amendment lacks merit. The district court did not
deny Harris’s motion to fire his attorney; instead, the court took that motion
seriously and held three ex parte hearings on the matter. Indeed, Harris ultimately
withdrew the motion. See United States v. Velazquez, 855 F.3d 1021, 1033–34
(9th Cir. 2017) (constructive denial of counsel occurs when the defendant “has,
with legitimate reason, completely lost trust in his attorney, and the trial court
refuses to remove the attorney”) (quoting Daniels v. Woodford, 428 F.3d 1181,
1198 (9th Cir. 2005)).
3
Nor did the court abuse its discretion by denying a motion for continuance
that implicated the right to counsel. See United States v. Thompson, 587 F.3d
1165, 1171 (9th Cir. 2009). To begin, neither of the requests for continuance
identified by Harris appears to implicate the right to counsel in the first place, and
so they cannot void the appeal waiver. The first request was made for the purpose
of obtaining a lawyer to provide a “second opinion” about the case, and Harris
cites no authority suggesting that such second-opinion counsel is guaranteed by the
Sixth Amendment. And the context of the second request makes clear that the
purpose of the proposed continuance was to give Harris more time to attempt to
renegotiate the plea agreement he had already signed. These requests are far
removed from the facts of cases in which we have analyzed continuance motions as
potentially implicating the Sixth Amendment. See Thompson, 587 F.3d at1173–75; United States v. Garrett, 179 F.3d 1143, 1145–47 (9th Cir. 1999); United
States v. Studley, 783 F.2d 934, 938–39 (9th Cir. 1986).
In any case, the district court did not abuse its discretion. The court issued a
written order explaining its treatment of Harris’s motions. See Garrett, 179 F.3d at
1147 (“When denying a continuance, especially one that arguably implicates the
defendant’s right to counsel, the district court should summarize in the record its
reasons for the denial.”). The court found that Harris was “creating disagreements”
4
in order to make a record for subsequent collateral attack—that is, that legitimate
reasons for delay did not exist, and that Harris was not prejudiced. See Thompson,
587 F.3d at 1174 (listing factors district court should consider). The court’s
decision to deny Harris’s continuance motions was therefore not an abuse of
discretion.
3. Finally, Harris argues that his appeal waiver is invalid because the
district court advised him that he retained the right to appeal, and that the scope of
the waiver does not cover his remaining appellate claims. We reject these
arguments as well. The district court’s statements at sentencing did not create “a
reasonable expectation of a right to appeal” in the face of the explicit appeal waiver
contained in Harris’s plea agreement. United States v. Arias-Espinosa, 704 F.3d
616, 618 (9th Cir. 2012) (internal quotation marks omitted). And the plain
language of the waiver provision—which states that Harris waives “his right to
appeal the conviction and sentence”—encompasses claims of error in the
sentencing process like the Federal Rule of Criminal Procedure 32(e) issue Harris
raises here. See United States v. Martinez, 143 F.3d 1266, 1270–71 (9th Cir.
1998); cf. United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000) (“[A]n appeal
that includes an ineffective assistance of counsel at sentencing argument is still an
appeal from one’s sentence.”).
5
Because none of Harris’s arguments undermine the validity of the appeal
waiver contained in his plea agreement, we must dismiss his appeal.
DISMISSED.
6