United States v. Matthew Worthing

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 18, 2020
• Docket: 18-10226
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 18 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10226

Plaintiff-Appellee, D.C. No. 3:12-cr-00300-CRB-1 v.

MATTHEW WORTHING, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Submitted August 14, 2020** San Francisco, California

Before: HAWKINS and CHRISTEN, Circuit Judges, and GRITZNER,*** District Judge.

Matthew Worthing entered a plea of guilty on two counts of bid-rigging at a

real estate foreclosure sale and two counts of conspiracy to commit mail fraud. He

* 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 James E. Gritzner, United States District Judge for the Southern District of Iowa, sitting by designation. was sentenced to thirty days in prison followed by two years of supervised release.

On appeal, Worthing contends that his guilty-plea is invalid, and the thirty-day

sentence is procedurally and substantively unreasonable. We have jurisdiction under

28 U.S.C. § 1291. We dismiss in part pursuant to the enforceable appeal waiver

contained in Worthing’s plea agreement and affirm in part. See United States v.

Watson, 582 F.3d 974, 988 (9th Cir. 2009).

The government requests that we dismiss the appeal in full because Worthing

waived his right to appeal his conviction and his right to challenge a sentence within

or below the stipulated Guidelines range. We review de novo whether Worthing has

waived his right to appeal. See United States v. Arias-Espinosa, 704 F.3d 616, 618

(9th Cir. 2012). A waiver is enforceable if (1) “the waiver is knowingly and

voluntarily made,” and (2) “the language of the waiver encompasses [the

defendant’s] right to appeal on the grounds raised.” United States v. Lo, 839 F.3d

777, 783 (9th Cir. 2016) (citation omitted).

Looking first to Worthing’s waiver of his right to appeal the conviction, the

“circumstances surrounding the signing and entry of the plea agreement” indicate

Worthing “agreed to its terms knowingly and voluntarily.” United States v.

Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996). Worthing’s written plea agreement

expressly stated that Worthing acknowledged and waived his right to appeal the

conviction. Worthing signed his plea agreement, acknowledging he had read and

2 18-10226 agreed to its terms. The district court inquired whether, and Worthing confirmed

under oath that, he had read, discussed with his attorney, and understood the terms

of his plea agreement. And Worthing confirmed that he had not been threatened or

otherwise forced to enter the plea agreement. The broad language of the general

appeal waiver encompasses Worthing’s challenges to his conviction. See United

States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011) (“We have consistently read

general waivers of the right to appeal to cover all appeals, even an appeal from the

denial of a motion to withdraw a guilty plea.”).

Nevertheless, Worthing contends his appeal waiver is unenforceable because

the district court failed to make several advisements required under Federal Rule of

Criminal Procedure 11(b)(1). Although the “appeal waiver will not apply if . . .

[Worthing’s] guilty plea failed to comply with Fed. R. Crim. P. 11,” Watson, 582

F.3d at 987 (quoting United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007)),

Worthing has failed to identify a Rule 11 error that invalidates his guilty plea, see

United States v. Escamilla-Rojas, 640 F.3d 1055, 1060–61 (9th Cir. 2011).

Worthing confirmed in district court that he understood the terms of his plea

agreement. The district court asked the prosecutor to recite the maximum penalties,

the essential elements of the charges, as well as the nature of the charges, and

Worthing confirmed his understanding. The plea agreement, which Worthing

signed, also recited the relevant information regarding restitution, special

3 18-10226 assessments, and the nature of the charges. During the plea hearing, the district court

directed Worthing to the pages of the plea agreement discussing the bases of the

charges and confirmed that Worthing had fully reviewed and understood that

information. On this record, there is no reversible error. See United States v.

Villalobos, 333 F.3d 1070, 1074 (9th Cir. 2003) (error is harmless if record shows

defendant “‘was aware of the rights at issue when he entered his guilty plea’ or that

the district court’s Rule 11 error was simply ‘minor or technical’” (quoting United

States v. Minore, 292 F.3d 1109, 1119 (9th Cir. 2002)); see also United States v.

Vonn, 294 F.3d 1093, 1094 (9th Cir. 2002) (no plain error in failure to make Rule

11(b)(1)(A) advisement where government did not initiate perjury action against

defendant and record showed plea was voluntary).

The record does not support Worthing’s contention that the district court

improperly interfered with plea negotiations in connection with his motion to

withdraw his guilty plea. See Fed. R. Crim. P. 11(c)(1).

Finally, although the district court failed to address the sentencing appeal

waiver during the plea hearing as required by Rule 11(b)(1)(N), see United States v.

Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004), Worthing’s sentence-related

contentions fail on the merits. Worthing has not demonstrated that the district court

committed plain error in its explanation of the sentence or consideration of the 18

U.S.C. § 3553(a) sentencing factors. See United States v. Valencia-Barragan, 608

4 18-10226 F.3d 1103, 1108 (9th Cir. 2010). The district court did not abuse its discretion by

imposing the below Guidelines sentence. Gall v. United States, 552 U.S. 38, 51

(2007). The sentence is substantively reasonable in light of the totality of the

circumstances and the § 3553(a) factors. See id.

DISMISSED, in part, and AFFIRMED.

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