United States v. Vieyra

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 21, 2026
• Docket: 24-7188
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 21 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-7188 D.C. No. Plaintiff - Appellee, 1:23-cr-00145-DAD-BAM-1 v. MEMORANDUM* JOSE ANTONI VIEYRA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted January 7, 2026** San Francisco, California

Before: GOULD, NGUYEN, and BENNETT, Circuit Judges.

Jose Antoni Vieyra appeals his 56-month sentence for dealing firearms

without a license in violation of 18 U.S.C. § 922(a)(l)(A). Vieyra raises arguments

challenging the enforceability of the appellate waiver in his plea agreement. He also

contends that, even if the waiver is valid, it does not apply to his constitutional claims

* 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). that the district court violated his right to due process by interrupting his allocution

and making remarks that reflected judicial bias. Vieyra further argues that the

district court erred by not addressing particular mitigation arguments raised at

sentencing.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm. The appellate

waiver is valid, and even assuming without deciding that Vieyra’s constitutional

claims fall outside the waiver, they fail on the merits. Finally, Vieyra’s

nonconstitutional challenge regarding his mitigation arguments is barred by the

waiver.

1. Vieyra is not licensed to sell firearms. But in September and October

2022, he sold multiple firearms to a confidential informant working for the Bureau

of Alcohol, Tobacco, Firearms and Explosives.

An indictment followed, charging Vieyra with dealing firearms without a

license in violation of 18 U.S.C. § 922(a)(l)(A). In March 2024, Vieyra and the

government entered into a written plea agreement. Vieyra agreed to plead guilty to

violating § 922(a)(l)(A), pay a fine, and forfeit all firearms and ammunition seized

in the case. The agreement also contained the following waiver:

The defendant understands that the law gives the defendant a right to appeal his guilty plea, conviction, and sentence. The defendant agrees as part of his plea/pleas, however, to give up the right to appeal the guilty plea, conviction, and the sentence imposed in this case. The defendant understands that this waiver includes, but is not limited to, any and all constitutional and/or legal challenges to the defendant’s

2 24-7188 conviction and guilty plea, including arguments that the statutes to which defendant is pleading guilty are unconstitutional, and any and all claims that the statement of facts attached to this agreement is insufficient to support the defendant’s plea of guilty. The defendant specifically gives up the right to appeal any order of restitution the Court may impose.

Notwithstanding the defendant’s waiver of appeal, the defendant will retain the right to appeal if one of the following circumstances occurs: (l) the sentence imposed by the District Court exceeds the statutory maximum; and/or (2) the government appeals the sentence in the case. The defendant understands that these circumstances occur infrequently and that in almost all cases this Agreement constitutes a complete waiver of all appellate rights.

The district court accepted Vieyra’s plea at a hearing on May 15, 2024 and

later sentenced Vieyra to 56 months’ imprisonment. This appeal followed.

2. We review de novo whether a defendant has waived his right to appeal.

See United States v. Bibler, 495 F.3d 621, 623 (9th Cir. 2007). An appellate waiver

is enforceable if the defendant “knowingly and voluntarily waives [their] rights and

the language of the waiver covers the grounds raised on appeal.” Id. at 623–24.

“[W]e ‘have consistently read general waivers of the right to appeal to cover all

appeals.’” United States v. Goodall, 21 F.4th 555, 562 (9th Cir. 2021) (quoting

United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011)). But a waiver will

not apply if “1) a defendant’s guilty plea failed to comply with [Federal Rule of

Criminal Procedure] 11; 2) the sentencing judge informs a defendant that she retains

the right to appeal; 3) the sentence does not comport with the terms of the plea

agreement; or 4) the sentence violates the law.” Bibler, 495 F.3d at 624.

3 24-7188 Vieyra’s plea agreement contained a waiver in which Vieyra agreed “to give

up the right to appeal the guilty plea, conviction, and the sentence imposed in this

case.” The plain text of this waiver encompasses appeals challenging Vieyra’s

sentence.

Vieyra contends that the language in his plea agreement is ambiguous. “Plea

agreements are interpreted using contract principles with any ambiguity construed

in the defendant’s favor.” United States v. Watson, 582 F.3d 974, 986 (9th Cir.

2009). Because one provision of the waiver only explicitly references Vieyra’s

inability to challenge his “conviction and guilty plea”—but not his sentence—Vieyra

urges that it is at least unclear whether he retains the right to contest his sentence.

We disagree. The provision of the agreement that Vieyra points to provides

that his waiver “includes, but is not limited to, any and all constitutional and/or legal

challenges to the defendant’s conviction and guilty plea.” While this clause lists

certain types of challenges to Vieyra’s conviction and guilty plea as examples of

what he cannot appeal, it also states that the waiver is “not limited to” such

challenges. Leaving no doubt, the following paragraph of the plea agreement

explains that unless the sentence imposed “exceeds the statutory maximum” or “the

government appeals the sentence,” Vieyra’s plea results in “a complete waiver of all

appellate rights.”

3. Vieyra also contends that the appellate waiver is unenforceable because

4 24-7188 his plea colloquy failed to comply with Rule 11. See United States v. Portillo-Cano,

192 F.3d 1246, 1250, 1252 (9th Cir. 1999) (concluding that the defendant’s right to

appeal was not waived when his plea did not conform to the requirements of

Rule 11). Vieyra argues that the district court erred by not determining whether he

was suffering from any alcohol withdrawal symptoms before accepting his plea.

Because Vieyra “did not object to the adequacy of the plea colloquy before the

district court, we review for plain error.” Watson, 582 F.3d at 987.

The district court did not ask Vieyra whether he was experiencing symptoms

of alcohol withdrawal. But at the hearing, the district court verified that Vieyra had

not “taken any medication, drugs, or anything in the last 48 hours that affect[ed] [his]

ability” to understand the proceedings. Vieyra also confirmed that he understood

the elements of the crime to which he was pleading, he had read and signed his plea

agreement, and he understood that the agreement contained a waiver of the right to

appeal “[his] sentence or challenge [his] sentence or conviction[].” And nothing in

the hearing transcript suggests that Vieyra was suffering from any symptoms of

withdrawal at the time of the colloquy. Nor is there any basis to infer that his

statements or behavior caused counsel or the district court to be concerned about

Vieyra’s mental state and ability to enter a plea. As the government also points out,

because Vieyra had been in pretrial custody for more than a year—and reportedly

last consumed alcohol in October 2023—it is unlikely that he was experiencing

5 24-7188 withdrawal symptoms during the Rule 11 colloquy.

Thus, we see no error here. But even if the district court committed an error,

Vieyra has failed to demonstrate that the district court committed an error that was

“clear or obvious.” Molina-Martinez v. United States, 578 U.S. 189, 194 (2016);

see also United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (explaining that

the defendant has “the burden of establishing entitlement to relief for plain error”).

Nothing in the text of Rule 11 requires a district court to ask a defendant with a

history of substance abuse whether they are suffering from any withdrawal

symptoms. See Fed. R. Crim. P. 11. And Vieyra points to no precedent holding that

a district court violates Rule 11 by failing to conduct an inquiry of this type. Thus,

this challenge to the appellate waiver also fails.

4. Taking a different tack, Vieyra urges that his constitutional challenges

present an exception to his appellate waiver. “[A] waiver of the right to appeal a

sentence does not apply,” we have explained, “if (1) the defendant raises a challenge

that the sentence violates the Constitution; (2) the constitutional claim directly

challenges the sentence itself; and (3) the constitutional challenge is not based on

any underlying constitutional right that was expressly and specifically waived by the

appeal waiver as part of a valid plea agreement.” United States v. Wells, 29 F.4th

580, 587 (9th Cir. 2022).

In United States v. Atherton, a three-judge panel determined that the second

6 24-7188 requirement—that the defendant’s constitutional claim challenge the “sentence

itself”—includes not only substantive challenges but also procedural ones. See 106

F.4th 888, 894 (9th Cir. 2024), reh’g en banc granted, opinion vacated, 134 F.4th

1009 (9th Cir. 2025). But our court granted en banc review and vacated the three-

judge panel opinion. The en banc panel heard argument last year, but subsequently

vacated submission pending the Supreme Court’s decision in Hunter v. United

States, No. 24-1063. See Order, United States v. Atherton, No. 21-30266 (9th Cir.

Oct. 28, 2025), Dkt. No. 75. While Hunter and Atherton remain pending, “it is an

open question” whether a defendant may avoid an appeal waiver by asserting

“constitutional challenges to the sentencing process.” United States v. Davis, 156

F.4th 971, 975 n.1 (9th Cir. 2025).

Vieyra’s due process challenges—alleging denial of the right to allocution and

judicial bias—are constitutional challenges to the sentencing process. But the

outcome of Hunter and Atherton will not change the outcome of Vieyra’s case

because his constitutional claims fail on the merits. We thus address the merits now.

See Wells, 29 F.4th at 585 n.1 (“[A] plea agreement’s appeal waiver does not divest

our court of jurisdiction to hear an appeal.”).

5. Vieyra asserts that he was denied due process because the district court

repeatedly interrupted his allocution. Vieyra did not raise an objection on these

grounds at sentencing.

7 24-7188 We have reviewed unpreserved challenges to the exercise of allocution rights

for harmless error, rather than plain error. See, e.g., United States v. Gunning, 401

F.3d 1145, 1147, 1149 n.6 (9th Cir. 2005). In United States v. Daniels, however, we

observed that intervening Supreme Court decisions clarifying the broad scope of

plain-error review may require us to apply that standard instead. See 760 F.3d 920,

922–23 (9th Cir. 2014). There we “assume[d] without deciding that plain error

review applies,” concluding that the defendant would prevail under either standard.

Id. We need not resolve today the appropriate standard, as we conclude that the

district court committed no error here.

“[I]t has long been recognized that allocution, the right of the defendant to

personally address the court, is an essential element of a criminal defense.”

Boardman v. Estelle, 957 F.2d 1523, 1526 (9th Cir. 1992) (footnote omitted). But

our case law has limited the right to circumstances that reflect “the denial of an

affirmative request to speak.” Id. at 1529. When a defendant “makes a request that

he be permitted to speak to the trial court before sentencing” and “the trial court

denies that request,” we have concluded that “the defendant has not received due

process.” Id. at 1530.

In considering challenges under the Federal Rules of Criminal Procedure, we

have similarly found that a defendant’s right to allocution is violated when a district

court wholly fails to allow a defendant to allocute, see Daniels, 760 F.3d at 923–25,

8 24-7188 or when the court “significantly hinder[s]” a defendant’s “efforts at allocution,”

United States v. Sarno, 73 F.3d 1470, 1503 (9th Cir. 1995) (finding denial of the

right to allocution when the defendant was “curtly silenced” and told not to speak

unless the district court asked him a question). But in this context, too, we have

observed that allocution “is not unlimited.” United States v. Kellogg, 955 F.2d 1244,

1250 (9th Cir. 1992). For instance, we have declined to find a denial of the right

when a defendant is “personally addressed by the court and provided with an

opportunity to present information bearing on mitigation,” and “[t]he record does

not demonstrate that the district judge intimidated the [defendant] or deterred them

from speaking.” United States v. Mack, 200 F.3d 653, 658 (9th Cir. 2000).

The district court personally addressed Vieyra and provided him with the

opportunity to allocute at sentencing. Vieyra was not told to stay quiet or only speak

when spoken to. And he did present mitigating information and describe how he has

reflected on his conduct while in custody. It is true that the district court repeatedly

interrupted Vieyra. But the record reflects that the sentencing court attempted to

have a discussion with Vieyra and address the court’s specific concerns about the

offense conduct—not to hinder Vieyra’s efforts at allocution or silence him

altogether. Indeed, the district court reiterated that it wanted to hear from Vieyra,

explaining, for example: “I want to hear you out. I want to hear everything you

have to say.” “I’m just trying to understand how did you let yourself get involved

9 24-7188 in this.” And “I really meant it when I said I want to have a conversation with you

because I don’t get it.” The transcript also denotes a pause between when Vieyra

finished speaking and when the district court imposed its sentence.

On our review of the record, the district court did not deny Vieyra due process

by infringing on his right of allocution.

6. Vieyra also contends that the district court demonstrated

unconstitutional bias against him at sentencing, requiring his sentence to be vacated

and his case assigned to a different judge. Vieyra objects to statements in which the

sentencing court observed that offenses involving the illegal sale of firearms are

“some of the most serious criminal cases.” The district court expressed concern that

“[p]eople are not buying those guns to collect or to go take target practice with.” To

the contrary, the court explained, “[p]eople are buying guns like this and these kinds

of guns from people who aren’t licensed to shoot at and potentially kill people.”

“Where recusal was not requested in the district court, as is the case here,

judicial bias claims are reviewed for plain error.” United States v. Rangel, 697 F.3d

795, 804 (9th Cir. 2012). “The fact that a judge has strong feelings on a particular

crime,” we have emphasized, “does not automatically disqualify him from

sentencing those who have committed that crime.” United States v. Borrero-Isaza,

887 F.2d 1349, 1357 (9th Cir. 1989) (per curiam). And we have declined to find

that a district court’s remarks about the severity of a particular offense reflect the

10 24-7188 level of animus required to warrant recusal. See, e.g., United States v. Allen, 633

F.2d 1282, 1294 (9th Cir. 1980) (concluding that the statement that importing

marijuana was “a very serious crime that had a ‘cancer’-like effect on society” was

“nowhere near the sort of apparent ethnic, political, or personal animus” warranting

recusal); United States v. Wilkerson, 208 F.3d 794, 799 (9th Cir. 2000) (“[T]he

court’s commentary on his role as ‘represent[ing] the community’ and that the

community was ‘tired’ of armed robbery and guns does not demonstrate the kind of

‘truly extreme’ remarks that are required for recusal.” (second alteration in

original)).

Vieyra has failed to demonstrate that, based on comments made at sentencing,

the district judge was biased against him. On this record, we see no grounds to

conclude that the district judge could not and did not impartially impose its sentence.

Thus, Vieyra has not shown plain error.

7. Vieyra offers a final reason to remand this case for resentencing. He

contends that the district court erred by not addressing at the sentencing hearing

particular mitigation arguments he raised. But Vieyra does not make any meaningful

constitutional argument. The appeal waiver in his plea agreement thus bars this

claim.

AFFIRMED.

11 24-7188