United States v. Aaron Hood

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 29, 2024
• Docket: 22-10185
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10185

Plaintiff-Appellee, D.C. No. 1:19-cr-00131-LEK-1 v.

AARON ANTHONY HOOD, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawai’i Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted February 12, 2024 Honolulu, Hawai’i

Before: PAEZ, M. SMITH, and KOH, Circuit Judges.

Aaron Hood (Hood) appeals his sentence after pleading guilty to one count

of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). We

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

The government argues that this appeal is barred by a valid appellate waiver

in Hood’s plea agreement. We review de novo whether a defendant has waived his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. right to appeal. See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011).

We reject Hood’s argument in his reply brief that the appellate waiver is

unenforceable because his lawyer coerced him into pleading guilty, thus rendering

his guilty plea involuntary. When Hood accepted the appellate waiver, he did not

waive his right to challenge the enforceability of the waiver on the ground that it

was involuntary. However, Hood did not contest the enforceability of the appellate

waiver in his opening brief on appeal. See United States v. Lo, 839 F.3d 777, 787

n.3 (9th Cir. 2016) (holding a plea agreement’s appellate waiver enforceable and

rejecting the defendant’s argument that the appellate waiver was invalid under Fed.

R. Crim. P. 11 because the defendant failed to raise such an argument in his

opening brief); see also Omega Envtl., Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1167

(9th Cir. 1997) (declining “to address an argument raised for the first time in the

reply brief”). In any event, the district court conducted an extensive Rule 11

colloquy, during which Hood stated that he was pleading guilty voluntarily and

that no one had threatened, pressured, or forced him in any way to plead guilty.

The colloquy also included an admonishment regarding the appellate waiver,

“ensuring that the plea was knowing and voluntary.” United States v. Brizan, 709

F.3d 864, 866 (9th Cir. 2013). Thus, Hood’s argument that the appellate waiver is

unenforceable is without merit.

The terms of the appellate waiver in Hood’s plea agreement preclude Hood

2 from appealing the district court’s decision not to hold an evidentiary hearing to

further develop the record on Hood’s claim that his counsel’s ineffectiveness

coerced him to plead guilty. See Harris, 628 F.3d at 1205–06. Accordingly,

Hood’s appeal must be dismissed pursuant to the valid waiver. See id. at 1207.

We decline to address Hood’s contention that his lawyer provided

ineffective assistance of counsel in connection with the plea. Hood “may raise such

a claim in a collateral proceeding, where a complete record can be developed.”

Brizan, 709 F.3d at 867.

DISMISSED.