United States v. Ivhan Herrera-Chiang

MEMORANDUM *

Ivhan Herrera-Chiang (“Herrera”) appeals his convictions for three counts of bribery. He contends that the district court committed reversible error under Fed.R.Crim.P. 11(c)(1) by impermissibly participating in plea negotiations. We have jurisdiction under 28 U.S.C. § 1291 , and we dismiss the appeal.

I. Standard of Review

Because Herrera did not raise his Rule 11 argument before the district court, our review of that argument is for plain error. See United States v. Kyle, 734 F.3d 956, 962-63 (9th Cir.2013) (assuming without deciding that plain error review applies to unpreserved Rule 11 error); United States v. Thompson, 770 F.3d 689, 694 (8th Cir.2014) (applying plain error review to un-preserved Rule 11 error); United States v. Davila, 749 F.3d 982, 992-93 (11th Cir.2014) (same). We review de novo whether Herrera waived his right to appeal. United States v. Arias-Espinosa, 704 F.3d 616, 618 (9th Cir.2012).

II. Analysis

1. The government urges us to reject Herrera’s appeal because the plea agreement Herrera signed contained a waiver of his right of appeal. A waiver of the right of appeal is valid “only if knowingly and voluntarily made.” United States v.…

dissenting:

I have no doubt that the district judge unlawfully interfered in the plea negotiation process when he stated in Herrera-Chiang’s presence, inter alia, that Herrera-Chiang may not “see the light of day” and that the plea bargain represented “a realistic opportunity for him to not spend the rest of his life incarcerated.” In United States v. Davila, the Supreme Court acknowledged that the timing of a plea matters when determining whether such an error was prejudicial. — U.S. -, 133 S.Ct. 2139, 2149 , 186 L.Ed.2d 139 (2013) (“Had Davila’s guilty plea followed soon after the Magistrate Judge told Davi-la that pleading guilty might be ‘the best advice’ a lawyer could give him ... the error would likely qualify as prejudicial.”). Here, Herrera-Chiang changed his plea only four days after the status conference at, which the district judge made his final impermissible remarks. In my view, it is not possible to conclude without an eviden-tiary record that Herrera-Chiang did so for reasons other than the district court’s improper interference in the plea bargaining process. Under the circumstances, I would either remand for a hearing on the question or remand for…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

AUG 18 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 13-10607

Plaintiff - Appellee, D.C. No. 2:12- cr-00177- PGR-

v.

MEMORANDUM*

IVHAN DANIEL HERRERA-CHIANG,

AKA Ivhan Herrera, AKA Ivhan Herrera- Chiang, AKA La Mujer,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona Paul G. Rosenblatt, Senior District Judge, Presiding

Argued and Submitted August 12, 2015 San Francisco, California

Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.

Ivhan Herrera-Chiang (“Herrera”) appeals his convictions for three counts of

bribery. He contends that the district court committed reversible error under Fed.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. R. Crim. P. 11(c)(1) by impermissibly participating in plea negotiations. We have

jurisdiction under 28 U.S.C. § 1291, and we dismiss the appeal.

I. Standard of Review

Because Herrera did not raise his Rule 11 argument before the district court,

our review…