Opinion
21-50205
11-15-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MAICO KEVIN SANCHEZ, AKA Kevin Sanchez, Defendant-Appellant.
NOT FOR PUBLICATION
Argued and Submitted October 18, 2022 Pasadena, California
Appeal from the United States District Court for the Southern District of California No. 3:15-cr-01617-BEN-1 Roger T. Benitez, District Judge, Presiding
Before: O'SCANNLAIN, WATFORD, and HURWITZ, Circuit Judges.
MEMORANDUM [*]
Maico Kevin Sanchez appeals his 18-month sentence for violation of supervised release. We conclude that the district court procedurally erred in its consideration of the absence of an appeal waiver. We accordingly vacate the sentence and remand for resentencing.
1. Sanchez first contends that when the district court sentenced him for violation of supervised release, it procedurally erred by considering proportional punishment for the new offense-a prohibited factor under 18 U.S.C. § 3583(e). Because Sanchez did not raise this objection below, we review only for plain error. See United States v. Quintero-Junco, 754 F.3d 746, 749 (9th Cir. 2014). Regardless of the standard of review, however, Sanchez has not established that the court erred. When sentencing for a violation of supervised release, a court may not impose a sentence "solely, or even primarily, based on the severity of the new criminal offense." United States v. Simtob, 485 F.3d 1058, 1063 (9th Cir. 2007). The record does not show that the severity of the new offense was the primary factor in the court's sentencing analysis. While the court mentioned "the seriousness of the offense and the need to protect the public," mere reference to the severity of the offense does not "render a sentence unreasonable." United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006). That is especially true when, as here, the new offense is similar to the defendant's original offense because in that circumstance the severity indicates a greater breach of the court's trust. Simtob, 485 F.3d at 1063. The district court therefore did not punish Sanchez "for the criminal conduct underlying the revocation" in violation of 18 U.S.C. § 3583(e). Miqbel, 444 F.3d at 1182.
2. Sanchez next contends that the district court committed procedural error by increasing his sentence from 12 to 18 months after learning that Sanchez had not waived his right to appeal the sentence. We review this claim of procedural error de novo. See United States v. Tapia-Romero, 523 F.3d 1125, 1126 (9th Cir. 2008).
The district court stated that it viewed an appeal waiver "as an acceptance of responsibility, plus" and advanced two rationales for why it believed an appeal waiver was a relevant sentencing factor in this case. First, the court stated that Sanchez's failure to waive his right to appeal indicated that he had not fully accepted responsibility for his conduct. Second, the court observed that a defendant's waiver of the right to appeal "reduces the use of judicial resources" and therefore warrants a measure of leniency that would be inappropriate to confer on defendants who retain their right to appeal. On the facts of this case, we think neither of these rationales supported the district court's imposition of a longer sentence based on the absence of an appeal waiver.
Regarding the first consideration, the court procedurally erred by divorcing its analysis from the ultimate question whether the defendant has accepted responsibility. In United States v. Hernandez, 894 F.3d 1104 (9th Cir. 2018), this Court held that a judge may not increase a sentence or withhold a reduction under U.S.S.G. § 3E1.1(a) solely because the defendant has not waived the right to trial.
The court's inquiry must instead focus on whether the defendant has shown contrition. Id. at 1110. That reasoning applies with equal force in this context. Sanchez admitted to violation of the terms of his supervised release and the district court found that Sanchez was contrite when it initially decided that a 12-month sentence was sufficient but not greater than necessary. After learning that Sanchez had not waived his right to appeal the sentence, the court increased the sentence to 18 months without any explanation of how the absence of an appeal waiver called into question the sincerity of Sanchez's contrition or otherwise indicated a failure to accept responsibility. Indeed, there is no evidence in the record that the government ever sought an appeal waiver with respect to the sentence for violation of supervised release. Rather, the court appeared to place independent weight on the simple fact that Sanchez retained the right to appeal. Such an approach conflicts with Hernandez.
As for conservation of judicial resources, we do not think that factor is a relevant sentencing consideration in the context of this case. When a defendant pleads guilty, retaining the right to appeal consists largely of the right to challenge the propriety of the sentence the district court may impose. Allowing a district court to reward those who are willing to give up that right-or to punish those who are not-unduly burdens a defendant's right to appeal. In the context of an appeal waiver negotiated by a district judge, we have recognized that judicial involvement in a defendant's decision to forgo his right to appeal "inevitably carries with it the high and unacceptable risk of coercing a defendant" and "threatens the integrity of the judicial process." United States v. Gonzalez-Melchor, 648 F.3d 959, 964 (9th Cir. 2011) (quoting United States v. Bruce, 976 F.2d 552, 556 (9th Cir. 1992)). Permitting district judges to consider appeal waivers in their sentencing analysis raises these same concerns. First, if defendants must predict how a district judge would react to their decision to retain the ability to challenge that judge's sentence, many defendants will feel compelled to waive their right to appeal even if the prosecution never requests such a waiver. Second, allowing district judges to insulate their own sentencing decisions from appellate review by incentivizing defendants to accept (or even to seek out) appeal waivers jeopardizes the legitimacy of the sentencing process. These risks of coercion and threats to judicial integrity outweigh any marginal gain to judicial economy that would be achieved by considering appeal waivers when determining the appropriate length of a defendant's sentence.
Our decisions in United States v. Johnson, 581 F.3d 994 (9th Cir. 2009), superseded by regulation as recognized in United States v. Barrow, 606 Fed.Appx. 335, 336-37 (9th Cir. 2015), and United States v. Reina-Rodriguez, 468 F.3d 1147 (9th Cir. 2006), do not support the contrary conclusion. In Johnson, we held that it was permissible for the prosecution not to move for a sentencing reduction under U.S.S.G. § 3E1.1(b) based on a defendant's failure to waive his right to appeal because an appeal waiver can preserve prosecutorial resources and help achieve finality. Johnson, 581 F.3d at 1002. We did not suggest that the court itself may attempt to conserve judicial resources by giving preference to those who waive their appeal rights. In Reina-Rodriguez, we exhibited deference to the plea process when the prosecution refused to move for a reduction because the defendant had not pleaded guilty pursuant to a Fast Track-style program that would have included an appeal waiver. Reina-Rodriguez, 468 F.3d at 1158. We did not indicate that conserving judicial resources on appeal is a distinct value that sentencing courts may independently weigh in their 18 U.S.C. § 3553(a) analysis.
Because the district court committed procedural error when it increased Sanchez's sentence based on the absence of an appeal waiver, we need not decide whether the 18-month sentence the court imposed is substantively unreasonable. Nor do we need to reach the related claim that the court deprived Sanchez of due process by relying on unsupported assumptions when it considered the absence of an appeal waiver.
VACATED and REMANDED.
O'SCANNLAIN, Circuit Judge, concurring in part and dissenting in part:
I concur in Part 1 of the majority's memorandum disposition. Regrettably, I cannot concur in Part 2 but would affirm the district court.
I
Part 2 holds that the district court erred by withholding a sentence reduction after learning that Sanchez did not waive appeal. The majority suggests (without clearly distinguishing between the rationales) that it was both unlawful and unreasonable for the district court to "view[] an appeal waiver 'as an acceptance of responsibility, plus.'" Mem. dispo. at 3. In my view, it was neither.
A
The majority decides that the district court committed legal error because considering the absence of an appeal waiver "unduly burdens a defendant's right to appeal," risks "coercion," and threatens "judicial integrity." Mem. dispo. at 5. With respect, I see it differently.
Regarding undue burden, the majority ignores that "not every pressure or encouragement to waive ... a right, is invalid," but only "vindictiveness" or "retaliation" against exercise of a right. Corbitt v. New Jersey, 439 U.S. 212, 218 (1978). In particular, courts do not err in "not extending leniency to those who have not demonstrated those attributes on which leniency is based," even when such demonstration involves waiver of a legal right. Id. at 224. The majority invokes this court's holding that a court cannot make exercise of "a right enshrined in the constitution" into "virtually the entirety of the explanation for the sentence." United States v. Hernandez 894 F.3d 1104, 1111 (9th Cir. 2018). But Hernandez is doubly inapplicable. First, insofar as exercise of a legal right played any role in the explanation here, the right at issue was not constitutional but statutory. Abney v. United States, 431 U.S. 651, 656 (1977) (no constitutional right to appeal). Second, the district court here thoroughly explained its sentence with reference to the applicable sentencing factors and the facts of the case, and there is no reason to believe that its limited consideration of the absence of an appeal waiver was vindictive or retaliatory.
Regarding coercion, the majority asks the wrong question. The issue is not whether judicial consideration of appeal waiver will lead "many defendants [to] feel compelled to waive their right to appeal even if the prosecution never requests such a waiver," mem. dispo. at 5, but whether such consideration actually coerces waiver. It does not, any more than judicial consideration of a defendant's allocution coerces speech. Again, encouragement is not coercion. Corbitt, 439 U.S. at 218. While this court has held that "a waiver of appellate rights negotiated by the district court during sentencing" was invalid because impermissibly coercive, our analysis did not focus on the fact that it was appeal rights being waived, but on the risk of coercion inherent in all "judicial participation in plea negotiations." United States v. Gonzalez-Melchor, 648 F.3d 959, 964-65 (9th Cir. 2011) (emphasis added). We did not even suggest that judicial consideration of appeal waivers separate from the plea negotiation process was inappropriate.
Finally, regarding the purported threat to judicial integrity, the majority does not actually call into doubt the district court's integrity. Rather, the majority seems to worry that some district court might at some point abuse its discretion by incentivizing appeal waivers with the purpose of "insulat[ing its] own sentencing decisions from appellate review." Mem. dispo. at 5. But the question before us is not whether the abstract "risks" of letting district courts consider appeal waivers "outweigh any marginal gain," id. but whether the district court here erred in considering the absence of an appeal waiver. The hypothetical possibility of abuse does not establish actual legal error.
B
The majority also decides that the district court "divorc[ed] its analysis from the ultimate question whether the defendant had accepted responsibility." Mem. dispo. at 3. But the district court did discuss acceptance of responsibility, and to say that its analysis does not convince goes not to "legality," but to "reasonableness," to be reviewed not "de novo" but for "abuse of discretion." United States v. Montoya, 48 F.4th 1028, 1033 (9th Cir. 2022). Contra mem. dispo. at 3 ("We review this claim of procedural error de novo."). Under the proper standard of review, the district court's reasoning was not reversible error.
This court has previously recognized the relationship between appeal waiver and acceptance of responsibility. A defendant who has not waived appeal "has not accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner ... [thus] avoiding the expenditure of additional [government] resources," United States v. Johnson, 581 F.3d 994, 1003 (9th Cir. 2009) (cleaned up), and it is "reasonable" for a district court to deny a sentence reduction on this basis, United States v. Reina-Rodriguez, 468 F.3d 1147, 1158-59 (9th Cir. 2006), overruled on other grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). This "reasonable" analysis did not become "illogical, implausible, or without support in inferences that may be drawn from the facts in the record," United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc), simply because, due to a change in regulation, the government ceased to condition sentence reduction motions on the presence of an appeal waiver, U.S.S.G. § 3E1.1 cmt. n.6.
Here, the district court alluded to and applied Johnson and Reina-Rodriguez, albeit not by name. In doing so, it neither failed to explain "how the absence of an appeal waiver . indicated a failure to accept responsibility," contra mem. dispo. at 4, nor treated "conserving judicial resources on appeal" as "a distinct value" to be "independently weigh[ed]" in sentencing, contra id. at 6. The majority implies that a sentencing court should look beyond the absence of an appeal waiver to other indicia of acceptance of responsibility. But this disagreement does not concern interpretation of the sentencing factors themselves, and that the majority disagrees with the district court's application of the factors to the facts does not establish that the district court abused its discretion.
II
Since I would conclude that the district court did not err in considering the appeal waiver, I would reach the other claims of error. The 18-month sentence the district court imposed was not "greater than necessary," 18 U.S.C. § 3553(a), despite the court's earlier intention to impose a 12-month sentence. The court considered the shorter sentence only when it believed that Sanchez had intended to waive appeal. Far from showing error, the increase to 18 months is what one would expect in a situation where the court realized its "initial characterization was inopportune" and "corrected itself." United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en banc).
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.