United States v. Arturo Rodriguez-Rios

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 12, 2021
• Docket: 20-10352
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 12 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10352

Plaintiff-Appellee, D.C. No. 2:08-cr-01442-MHB-4 v.

ARTURO RODRIGUEZ-RIOS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

Submitted August 10, 2021** San Francisco, California

Before: SILER,*** CHRISTEN, and FORREST, Circuit Judges.

Appellant Arturo Rodriguez-Rios appeals his sentences for Conspiracy to

Commit Hostage Taking in violation of 18 U.S.C. § 1203; Hostage Taking in

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. violation of 18 U.S.C. § 1203; and Harboring Illegal Aliens for Financial Gain in

violation of 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(B)(i), and 18 U.S.C. § 2. He

argues that the district court erred by proceeding with resentencing by video-

teleconference because Rodriguez-Rios did not consult with counsel prior to giving

his consent as required by the Coronavirus Aid, Relief, and Economic Security

(CARES) Act, Pub. L. No. 116-136, § 15002(b)(4), 134 Stat. 281, 529 (2020).

Rodriguez-Rios also argues that the district court failed to make a sufficient

finding that delaying sentencing would pose “serious harm to the interests of

justice.” Id. § 15002(b)(2)(a). We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

1. The government argues that Rodriguez-Rios affirmatively consented to

being sentenced by video, did not object to the district court’s findings, and

therefore invited the court’s error, if there was one, or waived the error. “The

doctrine of invited error prevents a defendant from complaining of an error that

was his own fault.” United States v. Myers, 804 F.3d 1246, 1254 (9th Cir. 2015)

(citation omitted). “[A] failure to object or an uninformed representation to the

court is not alone sufficient evidence of waiver. Rather, there must be evidence

that the defendant was aware of the right he was relinquishing and relinquished it

anyway.” United States v. Depue, 912 F.3d 1227, 1233 (9th Cir. 2019) (en banc).

2 Here, there is insufficient evidence that Rodriguez-Rios knew he had a right

to consult counsel before deciding whether to waive his physical presence at

sentencing. See id. The government argues that the district court’s minute entry

put Rodriguez-Rios on notice of his right to consult with counsel, but the district

court’s minute entry did not expressly advise that Rodriguez-Rios had a right to

consult counsel before deciding to waive his physical presence. Accordingly, the

record does not establish that Rodriguez-Rios “affirmatively acted to relinquish a

known right,” United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc)

(emphasis added), and we review the district court’s decision to proceed with

sentencing by video for plain error, United States v. Lindsey, 634 F.3d 541, 555

(9th Cir. 2011).

2. To establish plain error, Rodriguez-Rios must show that: (1) there was an

error; (2) the error is clear or obvious; (3) the error affected his substantial rights;

and (4) the error seriously affected the fairness, integrity, or public reputation of

judicial proceedings. United States v. Johnson, 979 F.3d 632, 636 (9th Cir. 2020).

Assuming the court erred by proceeding with resentencing by video,

Rodriguez-Rios has not shown that the error affected his substantial rights. See id.

He does not argue that if had he consulted with counsel, he would not have agreed

to proceed by video, nor that the outcome of his resentencing would have been

3 different had he appeared in person. Accordingly, Rodriguez-Rios has not borne

his burden to show the error affected his substantial rights. See United States v.

Olano, 507 U.S. 725, 734 (1993).

Rodriguez-Rios also has not established that the asserted error seriously

affected the fairness, integrity, or public reputation of judicial proceedings. See

Johnson, 979 F.3d at 636. The district court went forward with resentencing

because Rodriguez-Rios had been transported to Arizona, away from the BOP

programming at the facility where he had been serving his original sentence. The

goal of proceeding by video was to allow Rodriguez-Rios to resume participating

in BOP programming as soon as possible. The district court directed counsel to

consult Rodriguez-Rios about proceeding by video, explained Rodriguez-Rios’s

right to appear in person, solicited Rodriguez-Rios’s unambiguous knowing

consent to proceed by video, and imposed a below-guideline sentence. On this

record, any error did not undermine the fairness, integrity, or public reputation of

Rodriguez-Rios’s resentencing hearing. See id.

AFFIRMED.