United States v. Tobias Vigil ( 2018 )

FILED
NOT FOR PUBLICATION
JUL 03 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10203
Plaintiff-Appellee, D.C. No.
2:06-cr-00299-WBS-1
v.
TOBIAS CHRISTOPHER VIGIL, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted November 17, 2017
San Francisco, California
Before: RAWLINSON and BYBEE, Circuit Judges, and FRIEDMAN,** District
Judge.
Defendant-Appellant Tobias Vigil appeals the revocation of his supervised
release on the ground that he did not knowingly and intelligently waive his due
process right to a revocation hearing. As Vigil’s challenge is raised for the first
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul L. Friedman, United States District Judge for the
District of Columbia, sitting by designation.
time on appeal, we review for plain error. United States v. Olano, 507 U.S. 725,
734 (1993); see United States v. Carter, 795 F.3d 947, 950 (9th Cir. 2015).
Vigil was charged with two violations of the conditions of his supervised
release. With counsel, he attended two status conferences in which his intent to
admit to the second charge and the scheduling of an evidentiary hearing on the first
charge were discussed. Shortly before the scheduled revocation hearing, a
stipulation signed by the government and Vigil’s counsel—but not Vigil—was
filed, stating that Vigil admitted to the petition’s second charge and stipulated the
government could prove by a preponderance of the evidence the facts alleged in
the petition. During the November 2, 2015, hearing, at which Vigil was present
and represented by counsel, his counsel represented that she had discussed the
stipulation with Vigil and that he was in agreement with the acceptance of the
stipulation.
After accepting the stipulation and finding the stipulated facts sufficient to
prove the violation alleged in the first charge, the court questioned Vigil as to the
second charge. The court erroneously advised Vigil that he “could be put back in
prison for another term of up to two years” if he admitted the second charge. The
correct maximum sentence was five years, as Vigil had been advised in his initial
plea agreement, his previous revocation proceedings, and the petition for this
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revocation proceeding. The court noted that Vigil “would also have the right to a
hearing with regard to charge number 2,” and questioned Vigil to ensure he
understood “that the facts [he’d] stipulated to can constitute a violation of both
charge number 1 and charge number 2.” Vigil confirmed that he understood the
effect of the stipulation he had entered through counsel and admitted to the second
charge. At no time during these or subsequent proceedings did Vigil object, move
to withdraw the stipulation or plea, or suggest that any waiver of his due process
rights was not made knowingly and intelligently.
Vigil now argues that the stipulation as to the first charge “was tantamount
to a waiver of [his] right to a revocation hearing” which “was not knowing and
intelligent.” Vigil was entitled to “an opportunity to appear, present evidence, and
question any adverse witness.” Fed. R. Crim. P. 32.1(b)(2)(C). Because Vigil
stipulated through his counsel to the government’s ability to prove the facts
alleged, he had the opportunity required by the rule. “[T]he district court did not
deny [Vigil] his due process rights in not conducting an evidentiary hearing.”
United States v. Verduzco, 330 F.3d 1182, 1186 (9th Cir. 2003). “[W]e have
repeatedly held that criminal defendants are bound by the admissions of fact made
by their counsel in their presence and with their authority,” United States v.
Hernandez-Hernandez, 431 F.3d 1212, 1219 (9th Cir. 2005) (collecting cases), and
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we do not require Rule 32.1(b)(2) advisements at revocation hearings, see United
States v. Segal, 549 F.2d 1293, 1300 (9th Cir. 1977). The district court did not
plainly err.
As to Vigil’s admission to the second charge, the district court’s erroneous
advisement of the maximum sentence during the November 2 hearing did not
affect Vigil’s substantial rights. Vigil had repeatedly been advised of the correct
maximum penalty and indicated his intent to admit to the charge prior to the
erroneous advisement. Moreover, as the district court advised Vigil and Vigil
confirmed he understood, the stipulated facts were sufficient to find the violation
alleged in the second charge.
Vigil also appeals his five-year sentence—the statutory maximum—as
substantively unreasonable, arguing that the sentence denied Vigil access to a
residential drug treatment program. We review the district court’s sentencing
decision for abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc). The district court considered the record before it, including
Vigil’s arguments regarding his need for drug treatment, and the proper statutory
factors. The sentence was not substantively unreasonable.
AFFIRMED.
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FILED
JUL 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
U.S. v. Vigil, Case No. 16-10203
Friedman, District Judge, concurring in part and dissenting in part:
I agree with the majority that the sentence imposed by the district court was
not substantively unreasonable. I respectfully dissent, however, from the
majority’s determination that Defendant-Appellant Tobias Vigil received all the
due process to which he was entitled.
First, I think it important to recognize that Vigil is not asserting a forfeited
error, but an invalid waiver — he argues that the waiver of his due process right to
a revocation hearing was not knowingly and intelligently made. And “[w]aiver is
different from forfeiture.” United States v. Olano, 507 U.S. 725, 733 (1993). If
this case involved a forfeited error, I would agree that the plain error standard of
review should apply. But under this court’s precedents, whether there was a
waiver that comported with the due process requirements incorporated into Rule
32.1 of the Federal Rules of Criminal Procedure is reviewed de novo. See United
States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008); United States v. Havier, 155
F.3d 1090, 1092 (9th Cir. 1998); cf. United States v. Stocks, 104 F.3d 308, 312 (9th
Cir. 1997) (where district court made factual findings as to validity of waiver,
voluntariness reviewed de novo, but findings of fact as to knowledge and
intelligence reviewed for clear error). And where this court finds a violation of due
process in the revocation context, that violation is then subject to harmless error
analysis. See Perez, 526 F.3d at 547; United States v. Verduzco, 330 F.3d 1182,
1184 (9th Cir. 2003); Havier, 155 F.3d at 1092. These standards of review apply
even if a defendant did not object to the due process violation in the district court,
as in this case. See Havier, 155 F.3d at 1092.
I acknowledge that waiver of a hearing or other rights under Rule 32.1 does
not require the formalities of a Rule 11 plea proceeding. Nevertheless, the plain
language of the Rule provides that a court must hold a hearing in order to revoke a
term of probation or supervised release unless that hearing is “waived by the
person.” See FED. R. CRIM. P. 32.1(b)(2). And this court has made clear that a
waiver of rights under Rule 32.1 must be knowing, intelligent, and voluntary:
“Given the importance of these interests [in due process and the assistance of
counsel] and the role Rule 32.1(b) plays in securing these interests in the probation
modification context, the Rule 32.1(b) rights at issue require the application to a
waiver of the knowing, intelligent, and voluntary standard.” See Stocks, 104 F.3d
at 311–12; see also United States v. LeBlanc, 175 F.3d 511, 515 (7th Cir. 1999)
(“We join the Ninth and Second Circuits today and hold that a waiver of the right
to a revocation hearing must be knowing and voluntary.”). Considering the record
in this case, I am not convinced that the waiver was sufficient to satisfy the due
process requirements of Rule 32.1.
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In assessing the validity of a waiver, this court looks to the “totality of the
circumstances,” see United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998),
although a court must not impose overly strict formalities when reviewing those
circumstances in the revocation context. The detail and care taken — or not
taken — by the trial court in its colloquy at a revocation hearing is one important
circumstance to be considered in determining whether a waiver of rights was
knowing and intelligent. See United States v. Correa-Torres, 326 F.3d 18, 23–24
(1st Cir. 2003). Here, the district court did not engage Vigil in any colloquy or
make any explicit findings regarding Vigil’s knowledge or understanding before
accepting his lawyer’s stipulation to charge 1. And the record does not indicate
that Vigil understood his rights under Rule 32.1 and knowingly and intelligently
waived them before counsel signed and submitted the stipulation on his behalf.
Nor did the court advise Vigil of any maximum statutory penalty with regard to
charge 1. When the district court judge did briefly address Vigil personally, the
judge affirmatively misadvised him as to the maximum sentence he faced with
regard to charge 2. The judge asked Vigil whether he understood that he faced a
statutory maximum of two years and Vigil responded, “Yes, I do.” But the judge
later imposed a five-year term of imprisonment.
Because the district court did not make any factual findings as to the validity
of the waiver, and because Vigil has raised a colorable argument that his waiver
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was not in fact knowingly and intelligently made, Vigil is entitled to a de novo
review of the waiver of his due process right to a revocation hearing. If the waiver
were found to be valid, that would end the inquiry. See, e.g., Olano, 507 U.S. at732–33. But in the absence of any affirmative evidence suggesting that Vigil
knowingly and intelligently waived his due process rights — and coupled with the
district court’s mistaken representation to Vigil that he faced a maximum statutory
penalty of only two years and Vigil’s affirmative response that he understood the
same — I cannot determine the waiver to have been valid. And I cannot find an
invalid waiver of a constitutional due process right to be a harmless error.
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