United States v. Jason David

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50274
Plaintiff-Appellee,
D.C. Nos.
v. 2:20-cr-00122-RGK-1
2:20-cr-00122-RGK
JASON ERIC DAVID, AKA
Jason David, AKA Jason E.
David, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted February 16, 2022
Pasadena, California
Filed June 15, 2022
Before: Daniel A. Bress and Patrick J. Bumatay, Circuit
Judges, and Sharon L. Gleason, * District Judge.
Opinion by Judge Bumatay
*
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2 UNITED STATES V. DAVID
SUMMARY **
Criminal Law
The panel affirmed a custodial sentence in a case in
which the defendant argued on appeal that his appellate
waiver is unenforceable because the district court violated
Fed. R. Crim. P. 11(b)(1)(N), which provides that the district
court must address the defendant personally and determine
that the defendant understands the terms of any appellate
waiver.
Because the defendant failed to object to the alleged
violation during the plea colloquy, the panel reviewed for
plain error. Noting that the defendant doesn’t claim that he
did not knowingly and voluntarily agree to the appellate
waiver, the panel wrote that the record shows that the
defendant understood that he was waiving his right to appeal
his sentence. The panel cited several factors in the record
including the plea agreement’s specificity as to the scope of
the appellate waiver, counsel’s certification of her discussion
and advice concerning the consequences of the entering the
agreement, the defendant’s assurances during the change-of-
plea hearing and plea colloquy that he understood the
proceedings and the agreement, and the fact that the
government raised the appellate waiver before the end of the
change-of-plea hearing. The panel wrote that nothing in the
record supports a reasonable probability that the defendant
would not have entered the guilty plea had the district court
separately addressed the appellate waiver as Rule 11
requires. The panel concluded that given these facts, and on
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. DAVID 3
this record, the plea colloquy at most constituted a technical
violation of Rule 11, but not a plain error that affected the
defendant’s substantial rights or an error that seriously
affected the fairness or integrity of his plea.
The panel thus held that the appellate waiver is
enforceable, and did not consider the defendant’s challenges
to his custodial sentence.
In a concurrently filed memorandum disposition, the
panel addressed the defendant’s objections to conditions of
his supervised release—affirming in part, and vacating and
remanding in part.
COUNSEL
Kathryn A. Young (argued), Deputy Federal Public
Defender; Cuauhtemoc Ortega, Federal Public Defender;
Office of the Federal Public Defender, Los Angeles,
California; for Defendant-Appellant.
Aaron Frumkin (argued), Assistant United States Attorney;
Bram M. Alden, Chief, Criminal Appeals Section; Tracy L.
Wilkison, Acting United States Attorney; United States
Attorney’s Office, Los Angeles, California; for Plaintiff-
Appellee.
4 UNITED STATES V. DAVID
OPINION
BUMATAY, Circuit Judge:
After pleading guilty to charges stemming from
possessing stolen mail, credit cards, and other financial
devices, Jason David was sentenced to 36 months in prison.
He now appeals his custodial sentence. But, under the terms
of David’s plea agreement, he waived the right to appeal his
sentence. David argues we should invalidate the waiver
because the district court violated Rule 11 of the Federal
Rules of Criminal Procedure. That Rule provides that the
district court must address the defendant “personally” and
determine that the defendant understands the terms of any
appellate waiver. Fed. R. Crim. P. 11(b)(1)(N). David
asserts that the district court failed to follow this requirement
and so he should be permitted to appeal his sentence.
Under plain-error review, we generally enforce an
appellate waiver unless the defendant’s substantial rights
were affected by any Rule 11(b)(1)(N) error. See United
States v. King, 985 F.3d 702, 711–12 (9th Cir. 2021).
Because the record shows that David understood the terms
of his plea agreement, we conclude that David cannot
overcome the plain-error standard and affirm his custodial
sentence. 1
I.
In July 2019, police were called to a BevMo! Wine and
Liquor store in Burbank, California, on a report of a possible
1
David also challenges certain conditions of his supervised release.
In a concurrently filed memorandum disposition, we address David’s
objections to those conditions, and we affirm in part and vacate and
remand in part.
UNITED STATES V. DAVID 5
theft. After arriving at the parking lot, an officer saw David
reaching his arm through the broken window of a white Ford
Explorer. David claimed that his key fob was not working
and so was trying to unlock the car through the window. The
officer asked David for his identification and David
complied. After a records check, the officer discovered that
David had an outstanding misdemeanor arrest warrant for
traffic violations and arrested him.
Officers then searched a backpack David was wearing
and the Explorer. Inside the backpack, officers found mail
belonging to others and a glass drug pipe. Inside the
Explorer, officers found more stolen mail, identification
cards, and other financial information. In total, the police
discovered 251 pieces of stolen mail; four California driver’s
licenses; eight debit and credit cards; 69 checks; and
37 social security numbers. David admitted that the items
were his and that they were stolen.
David was charged with (1) possession of stolen mail,
18 U.S.C. § 1708; (2) possession of 15 or more unauthorized
access devices, 18 U.S.C. § 1029(a)(3); and (3) aggravated
identity theft, 18 U.S.C. § 1028A(a)(1). David pleaded
guilty to the first two counts with a plea agreement. In the
plea agreement, the government and David agreed that his
offense level would be 13 after accepting responsibility and
that both parties reserved the right to argue for more
enhancements or departures under the U.S. Sentencing
Guidelines (“USSG”).
The plea agreement also contained an appellate waiver.
As part of the waiver, David agreed to “give[] up the right to
appeal” certain parts of his case such as (1) the “calculations
used to determine and impose any portion of the sentence;”
(2) “the term of imprisonment imposed by the Court;” and
(3) “[the] conditions of probation or supervised release
6 UNITED STATES V. DAVID
imposed by the Court . . . [as] set forth in General Order 18-
10 of this Court[.]” He also waived his right to appeal his
conviction.
In an attachment to the plea agreement, David certified
that he read the agreement “in its entirety” and that he
“carefully and thoroughly discussed every part of it with
[his] attorney.” He also certified that he understood the
terms of the agreement and that he wished to plead guilty to
benefit from the promises in the agreement. David’s counsel
similarly signed a certification attesting that she “thoroughly
discussed every part of th[e] agreement” with David and that
she advised him “of the consequences of entering into th[e]
agreement.”
David later appeared before the district court to enter his
guilty plea. At the outset of the change-of-plea hearing,
David and the district court discussed his knowledge of the
plea agreement:
COURT: Have you been able to read that
plea agreement?
DAVID: My attorney and I went over it,
yes.
COURT: Okay. And you’re satisfied with
her advice?
DAVID: Absolutely.
COURT: And you—you’ve gone over the
whole agreement and you
understand that agreement; is that
correct?
UNITED STATES V. DAVID 7
DAVID: Yes.
COURT: And you want to enter into it
today?
DAVID: I do.
The district court also noted how important it was for
David to understand what was happening at the hearing and
asked David to “stop” the district court if he had any
questions. David responded, “[a]bsolutely.” The district
court then went over the charges in the plea agreement, the
factual basis of the offenses, the statutory penalties for the
offenses, and the rights he was giving up by pleading guilty.
David said he understood the charges, the penalties, and his
trial rights. In response to David’s answers, the district court
commented that he “seemed to be very knowledgeable” of
what was happening at the hearing. After finding that David
had knowingly and voluntarily waived his rights and had the
consequences of the plea agreement explained to him, the
district court accepted the guilty plea and plea agreement.
The district court then began to set a sentencing date
when the prosecutor interjected—“[j]ust very briefly, Your
Honor. I apologize. I probably missed this, but just for the
record, the plea agreement contains waivers for appeal [sic]
on pages 11 through 13.” The district court responded,
“[y]es, and it’s in the plea agreement.” Both the prosecutor
and defense counsel thanked the court, and the hearing was
concluded. Defense counsel raised no objections and David
asked no further questions.
Two months later, the district court sentenced David. At
sentencing, David objected to a two-level enhancement for
possession of an “authentication feature” under USSG
§ 2B1.1(b)(11)(A)(ii), which was recommended by the
8 UNITED STATES V. DAVID
presentence report and supported by the government. The
district court overruled the objection, which led to an offense
level of 15 and a Guidelines sentencing range of 41 to
51 months based on David’s criminal history. The district
court varied below the Guidelines range and imposed a
sentence of 36 months.
David now appeals his custodial sentence. At the outset,
he argues that because the district court violated Rule
11(b)(1)(N), his appellate waiver is unenforceable. On the
merits, he contends that the government had agreed to
recommend a certain base offense level under the plea
agreement and that the district court improperly applied the
two-level enhancement for use of an authentication feature.
Because David’s attacks on his custodial sentence are
covered by the appellate waiver and we generally do not
exercise our jurisdiction to review the merits of an appeal
with a valid waiver, see United States v. Gonzalez-Melchor,
648 F.3d 959, 962 (9th Cir. 2011), we first turn to
compliance with Rule 11(b)(1)(N).
II.
Federal Rule of Criminal Procedure 11(b)(1)(N) requires
a district court to “inform a defendant of the terms of any
appellate waiver in the plea agreement.” King, 985 F.3d
at 711 (simplified). In particular, Rule 11 provides:
Before the court accepts a plea of guilty[,] . . .
the court must address the defendant
personally in open court. During this
address, the court must inform the defendant
of, and determine that the defendant
understands, . . . the terms of any plea-
UNITED STATES V. DAVID 9
agreement provision waiving the right to
appeal or to collaterally attack the sentence[.]
Fed. R. Crim. P. 11(b)(1)(N).
When a defendant fails to object to an alleged Rule 11
violation during the plea colloquy, we review for plain error.
United States v. Ma, 290 F.3d 1002, 1005 (9th Cir. 2002). A
plain error entails (1) an error, (2) that is plain, and that
affects both (3) substantial rights, and (4) the fairness,
integrity, or public reputation of judicial proceedings.
United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015)
(simplified). To satisfy this standard, the defendant must
show a “reasonable probability” that, but for the Rule 11
error, “he would not have entered the [guilty] plea.” Id.(simplified). But where the record as a whole reflects that
the defendant “understood the right to appeal his sentence,”
despite the omission of a Rule 11 advisal, we will not find
that the defendant’s substantial rights were affected. See
United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th
Cir. 2004).
David argues that his appellate waiver is unenforceable
because the district court did not comply with Rule
11(b)(1)(N). But since he failed to object to the alleged
violation during the plea colloquy, he must satisfy the plain-
error standard. We hold that he cannot do so.
To begin, we note that David doesn’t claim that he did
not knowingly and voluntarily agree to the appellate waiver.
His argument rests only on noncompliance with Rule
11(b)(1)(N). And the record shows that David understood
that he was waiving his right to appeal his sentence. So
David fails to show that his substantial rights were affected.
10 UNITED STATES V. DAVID
We start with the plea agreement itself. The document
sets forth the scope of the appellate waiver and specifies
what parts of David’s sentence he may and may not appeal.
With the signing of the plea, David also separately certified
that he read the entire agreement, carefully and thoroughly
discussed it with his attorney, and understood the terms of
the agreement. His counsel likewise certified that she
thoroughly discussed the agreement with David and advised
him of the consequences of entering the agreement.
Next, we have the change-of-plea hearing where the
district court noted that David seemed “very
knowledgeable” about the proceedings. At the start of
David’s plea hearing colloquy, the district court inquired if
David had the chance to read the plea agreement. David
reiterated that he reviewed the entire plea agreement with his
attorney. When asked if he was satisfied with his attorney’s
advice, David replied, “[a]bsolutely.” The district court
again made sure that David had “gone over the whole
agreement” and that he “underst[ood] th[e] agreement[.]”
David again responded affirmatively. The district court then
emphasized how important it was that David understood the
proceedings, and David agreed to alert and stop the district
court if he had any questions.
The district court and David then engaged in an
extensive colloquy about David’s trial rights, the nature of
the charges, and the consequences of a guilty plea. David
confirmed that he understood the charges and rights he was
giving up by pleading guilty. The district court then went
over the sentencing arrangement David and the government
agreed to in the plea agreement and explained how that
arrangement would not bind the court. Again, David
affirmed he understood. At the end of the colloquy, the
district court commented that David “seem[ed] to be very
UNITED STATES V. DAVID 11
knowledgeable of what [he’s] doing here.” The district court
then pressed to ensure that David was “freely and
voluntarily” accepting the plea agreement, and the court was
satisfied that he was.
What’s more, the government raised the appellate waiver
before the end of the change-of-plea hearing. The prosecutor
interrupted the court’s closing remarks, stating, “but just for
the record, the plea agreement contains waivers for appeal
on pages 11 through 13.” And the district court
acknowledged, “Yes, and it’s in the plea agreement.” While
this exchange fails to comply with Rule 11(b)(1)(N), it
accurately reflects the terms of the plea agreement that
David had repeatedly said he understood. Neither David nor
his counsel raised any questions or objections. In short,
David demonstrated strong knowledge of the consequences
of his plea agreement, concluded it was in his best interest,
and was “[a]bsolutely” satisfied with his counsel’s advice.
Nothing in the record supports a “reasonable probability”
that he would not have entered the guilty plea had the district
court separately addressed the appellate waiver as Rule 11
requires. See Myers, 804 F.3d at 1257.
Given these facts, David has “failed to show that the
error seriously affected the fairness or integrity of h[is]
plea.” Ma, 290 F.3d at 1005. In Ma, as here, the district
court was “meticulous in observing the requirements for
taking a plea in accordance with Rule 11,” except for the
Rule 11(b)(1)(N) requirement. Id. Rather than address the
appellate waiver itself, the district court asked the prosecutor
to summarize the plea agreement, including the appellate
waiver. Id. Even though Rule 11(b)(1)(N) “was not
complied with,” we looked to the “whole record” to
determine the effect of the “Rule 11 error on a defendant’s
substantial rights.” Id. We were satisfied there was no
12 UNITED STATES V. DAVID
serious effect because the defendant affirmed that the
prosecutor’s summary reflected her understanding of the
agreement and, like David, acknowledged in writing that she
read and understood the plea agreement. Id.David compares his case to Arellano-Gallegos, 387 F.3d
at 794, in which we found plain error after a Rule
11(b)(1)(N) violation. But Arellano-Gallegos is
distinguishable. In that case, the magistrate judge who
accepted the plea asked only “general questions,” and the
case turned on our conclusion that “there [wa]s no evidence
in the record that would demonstrate that [the defendant]
knew he was waiving the right to appeal his sentence.” Id.
at 797 (emphasis omitted). As discussed above, the record
here is more substantial. And in Arellano-Gallegos, we were
concerned that there was no mention of the appellate waiver
“in open court” until the district court “casual[ly]”
mentioned it at the sentencing hearing “some six months
after the plea had been accepted.” Id. Here, by contrast, the
appellate waiver was raised just moments after the Rule 11
plea colloquy and before the change-of-plea hearing
concluded.
On this record, we conclude that the district court’s plea
colloquy at most constituted “a technical violation of Rule
11,” id., but not a plain error that affected David’s substantial
rights. See also United States v. Jimenez-Dominguez, 296
F.3d 863, 868 (9th Cir. 2002) (“the district court’s otherwise
scrupulous compliance with Rule 11, coupled with the
defendant’s responses during the colloquy, demonstrates the
technical nature of the violation”).
We thus hold that the appellate waiver in David’s plea
agreement is enforceable and do not consider David’s
challenges to his custodial sentence.
UNITED STATES V. DAVID 13
III.
AFFIRMED in part and VACATED and
REMANDED in part as stated in the concurrently filed
memorandum disposition.