United States v. Jose Hernandez-Velazquez

FILED
NOT FOR PUBLICATION JUN 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10208
Plaintiff - Appellee, D.C. No. 1:11-cr-00134-LJO-1
v.
MEMORANDUM*
JOSE HERNANDEZ-VELAZQUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted June 12, 2014
San Francisco, California
Before: O’SCANNLAIN, SACK**, and BEA, Circuit Judges.
Defendant-Appellant Jose Hernandez-Velazquez appeals his jury conviction
of four counts of Sexual Exploitation of a Minor under 18 U.S.C. § 2251(a).
Hernandez-Velazquez asserts the district court violated his Sixth Amendment right
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
to counsel when it permitted him to proceed pro se without ensuring that his
waiver of his right to counsel was “knowing and intelligent.” We review the
validity of a waiver of a defendant’s right to counsel de novo, United States v.
Forrester, 512 F.3d 500, 506 (9th Cir. 2008), and affirm.
“[T]o deem a defendant’s Faretta waiver knowing and intelligent, the
district court must insure that [the defendant] understands 1) the nature of the
charges against him, 2) the possible penalties, and 3) the dangers and
disadvantages of self-representation.” Id. (internal quotation marks omitted). On
appeal, Hernandez-Velazquez concedes that “the district court convincingly and
thoroughly warned [him] about the dangers of self-representation.” However,
Hernandez-Velazquez argues that his waiver of counsel was not “knowing and
intelligent” because the district court failed to inform him of the nature of the
charges against him and the possible penalties. We disagree.
“[A]lthough it is ‘only the rare case in which an adequate waiver will be
found on the record in the absence of a specific inquiry by the trial judge,’ the
failure of the district court to engage in a colloquy with the defendant cannot itself
be reversible error.” United States v. Gerritsen, 571 F.3d 1001, 1008 (9th Cir.
2009) (quoting United States v. Balough, 820 F.2d 1485, 1488 (9th Cir. 1987)).
Rather, when the district court has not made an adequate waiver inquiry, the
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“defendant’s waiver must be evaluated in light of the record as a whole.” Id.
“Throughout this inquiry, we must focus on what the defendant understood, rather
than on what the court said or understood.” Balough, 820 F.2d at 1487–88.
At Hernandez-Velazquez’s April 2011 arraignment, the magistrate judge
informed Hernandez-Velazquez that “there’s an indictment filed with this Court
which charges you with three counts of a violation of Title 18, Section 2251(a).
Each – if you are convicted of that offense, each of the counts is punishable by as
many as 30 years in custody, and a fine of as much as $250,000.” Hernandez-
Velazquez’s attorney waived further reading of the indictment, but noted that, in
fact, “there are four counts with a mandatory minimum of 15 [years] on each.”
Further, Hernandez-Velazquez admitted that he received two plea offers which
stated that he had been charged with “[f]our separate counts of Sexual Exploitation
of a Minor (Production of Child Pornography), in violation of Title 18, United
States Code, Section 2251(a)” and listed the elements for this crime. When asked
by the district court if he “kn[e]w clearly what those plea offers were,” Hernandez-
Velazquez responded, “Yes.” Based on the transcript of the April 2011
arraignment and the two plea offers, we conclude that Hernandez-Velazquez
understood both the nature of the charges against him and the possible penalties.
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We therefore hold that Hernandez-Velazquez “knowingly and intelligently”
waived his right to counsel.
AFFIRMED.
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