United States v. Jonathan Sudduth

FILED
NOT FOR PUBLICATION FEB 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50116
Plaintiff - Appellee, D.C. No. 2:09-cr-00068-VAP-11
Central District of California,
v. Los Angeles
JONATHAN MICHAEL SUDDUTH, AMENDED
AKA Trent, MEMORANDUM*
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50451
Plaintiff - Appellee, D.C. No. 2:11-cr-00706-VAP-1
Central District of California,
v. Los Angeles
RYAN HAWTHORNE,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50452
Plaintiff - Appellee, D.C. No. 2:09-cr-00068-VAP-6
Central District of California,
v. Los Angeles
RYAN HAWTHORNE, AKA Pic,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted November 19, 2014**
Pasadena, California
Before: W. FLETCHER and BYBEE, Circuit Judges, and SINGLETON, Senior
District Judge.***
In connection with his participation on a child pornography message board,
Jonathan Sudduth pled guilty to conspiracy to advertise child pornography. As
part of his plea agreement, Sudduth expressly waived his right to appeal his
conviction and the calculation and terms of his sentence. Because Sudduth does
not contest that his appellate waiver was knowingly and voluntarily made, the
waiver bars Sudduth’s appeal of the district court’s denial of his motions to
withdraw his plea and to substitute counsel, and it bars his appeal of the calculation
and reasonableness of his 22-year sentence. See United States v. Harris, 628 F.3d
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
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1203, 1205 (9th Cir. 2011); United States v. Rahman, 642 F.3d 1257, 1259 (9th
Cir. 2011).
Sudduth also frames in constitutional terms challenges to his sentence on
disparity grounds and to the breadth of the supervised release conditions. While
this Court has jurisdiction to consider claims of constitutional error
notwithstanding the existence of an appellate waiver, United States v. Odachyan,
749 F.3d 798, 801 (9th Cir. 2014), the district court did not err here. The district
court had good reasons to treat Sudduth differently from other participants in the
crimes. See United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009). Sudduth
possessed approximately 7,000 images, some of which involved sadistic overtones,
and admitted that he had sexually abused two minor children. Moreover, Sudduth
did not provide useful information regarding other victims or targets and
eventually stopped cooperating with the government. Accordingly, we dismiss
Sudduth’s appeal.
Sudduth’s co-defendant, Ryan Hawthorne, appeals the district court’s
contribution order. Because Hawthorne did not object to the contribution order in
the proceedings below, his claim is reviewed for plain error. United States v. Fu
Sheng Kuo, 620 F.3d 1158, 1162 (9th Cir. 2010). Accordingly, Hawthorne must
show error that is plain and affects his substantial rights. United States v.
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Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011). Should he make such a showing,
we may then grant relief only if “the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Fu Sheng Kuo, 620 F.3d at 1164(quoting United States v. Cotton, 535 U.S. 625, 631 (2002)) (internal quotation
marks omitted).
Here, the district court did not plainly err in concluding that Hawthorne did
not have a constitutional right to a government-paid additional counsel for the
purpose of obtaining a second opinion regarding the validity of his guilty plea.
And even if that finding was incorrect, a matter we do not decide, it did not affect
Hawthorne’s “substantial rights.” See Pelisamen, 641 F.3d at 405-06. In this case,
1) the district court appointed substitute advisory counsel; 2) the motion to
withdraw his guilty plea was made, heard, and denied; and 3) Hawthorne did not
appeal the denial of his motion to withdraw his plea. See id.Sudduth’s appeal, filed under Docket No. 12-50116, is DISMISSED.
Hawthorne’s contribution order, appealed under Docket Nos. 12-50451 and
12-50452, is AFFIRMED.
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