United States v. Arturo Rodriguez-Rios ( 2021 )

FILED
NOT FOR PUBLICATION
AUG 12 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10352
Plaintiff-Appellee, D.C. No.
2:08-cr-01442-MHB-4
v.
ARTURO RODRIGUEZ-RIOS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted August 10, 2021**
San Francisco, California
Before: SILER,*** CHRISTEN, and FORREST, Circuit Judges.
Appellant Arturo Rodriguez-Rios appeals his sentences for Conspiracy to
Commit Hostage Taking in violation of 18 U.S.C. § 1203; Hostage Taking in
*
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 Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
violation of 18 U.S.C. § 1203; and Harboring Illegal Aliens for Financial Gain in
violation of 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(B)(i), and 18 U.S.C. § 2. He
argues that the district court erred by proceeding with resentencing by video-
teleconference because Rodriguez-Rios did not consult with counsel prior to giving
his consent as required by the Coronavirus Aid, Relief, and Economic Security
(CARES) Act, Pub. L. No. 116-136, § 15002(b)(4), 134 Stat. 281, 529 (2020).
Rodriguez-Rios also argues that the district court failed to make a sufficient
finding that delaying sentencing would pose “serious harm to the interests of
justice.” Id. § 15002(b)(2)(a). We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
1. The government argues that Rodriguez-Rios affirmatively consented to
being sentenced by video, did not object to the district court’s findings, and
therefore invited the court’s error, if there was one, or waived the error. “The
doctrine of invited error prevents a defendant from complaining of an error that
was his own fault.” United States v. Myers, 804 F.3d 1246, 1254 (9th Cir. 2015)
(citation omitted). “[A] failure to object or an uninformed representation to the
court is not alone sufficient evidence of waiver. Rather, there must be evidence
that the defendant was aware of the right he was relinquishing and relinquished it
anyway.” United States v. Depue, 912 F.3d 1227, 1233 (9th Cir. 2019) (en banc).
2
Here, there is insufficient evidence that Rodriguez-Rios knew he had a right
to consult counsel before deciding whether to waive his physical presence at
sentencing. See id. The government argues that the district court’s minute entry
put Rodriguez-Rios on notice of his right to consult with counsel, but the district
court’s minute entry did not expressly advise that Rodriguez-Rios had a right to
consult counsel before deciding to waive his physical presence. Accordingly, the
record does not establish that Rodriguez-Rios “affirmatively acted to relinquish a
known right,” United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc)
(emphasis added), and we review the district court’s decision to proceed with
sentencing by video for plain error, United States v. Lindsey, 634 F.3d 541, 555
(9th Cir. 2011).
2. To establish plain error, Rodriguez-Rios must show that: (1) there was an
error; (2) the error is clear or obvious; (3) the error affected his substantial rights;
and (4) the error seriously affected the fairness, integrity, or public reputation of
judicial proceedings. United States v. Johnson, 979 F.3d 632, 636 (9th Cir. 2020).
Assuming the court erred by proceeding with resentencing by video,
Rodriguez-Rios has not shown that the error affected his substantial rights. See id.He does not argue that if had he consulted with counsel, he would not have agreed
to proceed by video, nor that the outcome of his resentencing would have been
3
different had he appeared in person. Accordingly, Rodriguez-Rios has not borne
his burden to show the error affected his substantial rights. See United States v.
Olano, 507 U.S. 725, 734 (1993).
Rodriguez-Rios also has not established that the asserted error seriously
affected the fairness, integrity, or public reputation of judicial proceedings. See
Johnson, 979 F.3d at 636. The district court went forward with resentencing
because Rodriguez-Rios had been transported to Arizona, away from the BOP
programming at the facility where he had been serving his original sentence. The
goal of proceeding by video was to allow Rodriguez-Rios to resume participating
in BOP programming as soon as possible. The district court directed counsel to
consult Rodriguez-Rios about proceeding by video, explained Rodriguez-Rios’s
right to appear in person, solicited Rodriguez-Rios’s unambiguous knowing
consent to proceed by video, and imposed a below-guideline sentence. On this
record, any error did not undermine the fairness, integrity, or public reputation of
Rodriguez-Rios’s resentencing hearing. See id.
AFFIRMED.
4