United States v. Chan

82 F.3d 921, 96 Cal. Daily Op. Serv. 3156, 96 Daily Journal DAR 5204, 1996 U.S. App. LEXIS 10256, 1996 WL 224483
Court of Appeals for the Ninth Circuit·Decided May 6, 1996·No. No. 94-50585·Published·Cited by 4 cases

Opinion

LEAVY, Circuit Judge:

This appeal involves a defendant who received the sentence she bargained for in exchange for her entry of a guilty plea. The district court, however, faded to warn the defendant that she would be bound by her plea if the court later chose to reject the terms of the plea agreement. The district court did not reject the plea agreement, and the defendant did not object to the district court’s incomplete admonition. In the absence of any showing of prejudice to the defendant’s substantial rights, we hold that the district court’s omission was not plain error and affirm.

FACTS AND PRIOR PROCEEDINGS

Susan Sukming Chan (“Chan”) was indicted on four counts of bank fraud and money [923] laundering in violation of 18 U.S.C. §§ 1344 and 1957. The week before her trial was scheduled to begin, Chan entered into a plea agreement with the government. Chan promised to plead guilty to one count each of bank fraud and money laundering in exchange for the government’s agreeing to dismiss the remaining counts and its promise to recommend a sentence of not less than thirty months’ imprisonment and five years’ supervised release. Before accepting her change of plea, the district court warned Chan that it was not bound by the terms of her plea agreement, and had the prosecutor explain to Chan in open court exactly what her maximum sentence could be.1 The court failed, however, to advise Chan that she would not be permitted to withdraw her plea if the court chose to reject the terms of the plea agreement. See Fed.R.Crim.P. 11(e)(2).2 Chan did not object to this omission on the part of the district court.

With the exception of a single typographical error that was corrected at the sentencing hearing, the presentence investigative report’s (“PSR”) factual findings and sentencing recommendations were accepted by both Chan and the government. The district court then adopted the PSR’s findings and recommendations and sentenced Chan to the agreed upon thirty months in prison and five years of supervised release.

After filing a timely pro se notice of appeal, Chan requested and obtained the assistance of appointed counsel. Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), Chan’s attorney filed a brief indicating there were no meritorious issues for review and requested leave to withdraw. Based on our independent examination of the record, see Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 351, 102 L.Ed.2d 300 (1988), we have raised nostra sponte the question of whether the district court committed reversible error by failing to provide the Rule 11(e)(2) warning.

ANALYSIS

Standard of Review

Because Chan failed to object to the Rule 11(e)(2) omission, we review the issue for plain error under Fed.R.Crim.P. 52(b).3 Put simply, that means that (1) there must be error, (2) the error must be “plain” (i.e., clear and obvious), and (3) the error must “affect substantial rights.” United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Moreover, because “[p]lain error is highly prejudicial error affecting substantial rights[,] ... [we] find[ ] such error only where necessary to prevent a miscarriage of justice or to maintain the integrity of the judicial process.” United States v. Burt, 76 F.3d 1064, 1067 (9th Cir.1996) (internal citations omitted).

Discussion

Because Chan’s plea agreement was a so-called “type (B)” agreement,4 the inclusion [924] of the government’s promise to recommend a particular sentence created an obligation on the part of the district court to warn Chan that, while the court was not bound by the terms of the agreement, Chan would be bound by her guilty plea even if the court later chose to reject the agreement. See Fed.R.Crim.P. 11(e)(2) (“[T]he court shall advise the defendant that if the court does not accept the recommendation ... the defendant ... has no right to withdraw the plea.”). The district court’s failure to provide the warning therefore constituted an error and that error was clear and obvious. The question before us, then, is whether that error also affected Chan’s substantial rights. See Olano, 507 U.S. at 734-36, 113 S.Ct. at 1778; accord Fed.R.Crim.P. 11(h) (“Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.”).

We begin by noting that the mere failure on the part of a court to give a prescribed Rule 11 warning does not, without more, mean that the defendant’s substantial rights were adversely affected. See, e.g., United States v. Alber, 56 F.3d 1106, 1109 (9th Cir.1995) (court’s failure to advise defendant of maximum possible sentence prior to accepting guilty plea was harmless error where evidence showed defendant was already aware of maximum sentence). Thus, merely technical errors committed by a court at sentencing do not require that the sentence be set aside. Cf. United States v. Smith, 60 F.3d 595, 600 (9th Cir.1995) (“The harmless error clause of Rule 11 permits us to uphold guilty pleas only when there has been a minor or technical violation of Rule 11.”) (internal quotation omitted).

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United States v. Chan, 82 F.3d 921, 96 Cal. Daily Op. Serv. 3156, 96 Daily Journal DAR 5204, 1996 U.S. App. LEXIS 10256, 1996 WL 224483 (9th Cir. 1996).

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