United States v. Francheska Brizan

709 F.3d 864

9th Cir.

2013

Check Treatment

Docket

UNITED STATES of America, Plaintiff-Appellee, v. Francheska BRIZAN, Defendant-Appellant.

No. 11-10449.

United States Court of Appeals, Ninth Circuit.

March 5, 2013.

709 F.3d 864

Argued and Submitted Jan. 14, 2013.

whether 11 U.S.C. § 522(f)(1)(B) permits lien avoidance on the same. As the district court noted, the bankruptcy court resolved these issues as a matter of law and made no factual findings.

We review de novo the district court‘s decision,

In re AFI Holding, Inc., 525 F.3d 700, 702 (9th Cir.2008), and the bankruptcy court‘s interpretation of the Bankruptcy Code, .

III. DISCUSSION

Generally, when a debtor files Chapter 7 bankruptcy, all of the debtor‘s property becomes the property of the bankruptcy estate. 11 U.S.C. § 541. Federal law, however, provides avenues for the debtor to exempt certain property. 11 U.S.C. § 522(d). This exemption scheme can be supplanted by states that choose to provide their own menu of exemptions. 11 U.S.C. § 522(b)(2); see also

In re Granger, 754 F.2d 1490, 1490, 1492 (9th Cir.1985) (“[A] state that has opted out has considerable freedom in creating exemptions and eligibility requirements for those exemptions.“). California is one such state, providing its own exemption scheme in California Civil Procedure Code §§ 703.130 and 703.140.

We agree with the district court that as a purely legal matter Garcia is not prevented from exempting a motor vehicle up to the maximum allowable amount under California Civil Procedure Code § 703.140(b)(5). Section 703.140(b)(5) permits a debtor to exempt her “aggregate interest, not to exceed in value nine hundred twenty-five dollars ($925) plus any unused amount of the exemption provided under paragraph (1), in any property.” Cal.Civ.Proc.Code § 703.140(b)(5) (2010) (emphasis added). Paragraph (1) states that a debtor can exempt up to $17,425 in certain types of real or personal property. Id. § 703.140(b)(1) (2010). Thus, these two paragraphs combine to allow a debtor to exempt up to $18,350 in “any property.” “Any” means any, and fancy cars are not excluded.

The final question is whether a lien on a motor vehicle can be avoided under 11 U.S.C. § 522(f)(1)(B) as a tool of the debtor‘s trade. As the district court correctly ruled, the answer is “yes.”

In re Taylor, 861 F.2d at 553.

It remains to be seen whether Garcia‘s car qualifies as a tool of her trade. We affirm the district court‘s remand to the bankruptcy court for that factual determination, and likewise affirm the district court‘s ruling in all other respects.

AFFIRMED.

William Mallory Kent, The Law Office of William Mallory Kent, Jacksonville, FL, for Defendant-Appellant.

Karen A. Escobar, Assistant U.S. Attorney, Fresno, CA, for Plaintiff-Appellee.

Before: A. WALLACE TASHIMA and SUSAN P. GRABER, Circuit Judges, and LYNN ADELMAN,* District Judge.

OPINION

ADELMAN, District Judge:

A grand jury indicted Francheska Brizan, her husband, and others on charges of conspiring to distribute 5 kilograms or more of cocaine and attempted possession with intent to distribute 500 grams or more of cocaine. After extensive pre-trial proceedings, Brizan entered into a plea agreement with the government. Pursuant to the agreement, she pleaded guilty to an information charging misprision of a felony, in violation of 18 U.S.C. § 4, based on her concealment and failure to notify authorities of her husband‘s drug trafficking activities. The plea agreement contained a waiver of Brizan‘s right to appeal her conviction or sentence. Represented by new counsel, Brizan later moved to withdraw her plea and dismiss the information as defective. The district court denied the motion, then imposed a below-guideline sentence of four months’ imprisonment followed by one year of supervised release.

Brizan appeals, arguing that the district court should have allowed her to withdraw her plea because the misprision charge violated her Fifth Amendment privilege against self-incrimination, the information failed to allege an essential element of misprision, and the plea lacked an adequate factual basis. Because Brizan cannot overcome the appeal waiver contained in her plea agreement, we dismiss her appeal.

“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.”

United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir.2011). We decline to enforce an appeal waiver only if the district court failed to comply with Federal Rule of Criminal Procedure 11, the court informed the defendant that she retained the right to appeal, the sentence did not comport with the terms of the plea agreement, or the sentence violated the law. . None of these exceptions applies here. The district court conducted a thorough Rule 11 colloquy, which included an admonishment regarding the appeal waiver,¹ ensuring that the plea was knowing and voluntary, and Brizan‘s sentence did not contradict the agreement or exceed statutory limits.

To the extent that a constitutional claim of the sort Brizan raises could survive an appeal waiver, see

United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.1986) (stating that an “illegal” sentence includes a sentence in excess of the permissible statutory penalty or in violation of the Constitution), we find no merit in Brizan‘s argument that the misprision charge violated her Fifth Amendment rights. We have held that a misprision charge would be unconstitutional under the Fifth Amendment if, and to the extent, it required a defendant to report her own criminal conduct to the authorities. ; see also (per curiam).

However, Brizan waived her right to raise a Fifth Amendment defense to the misprision charge by pleading guilty. An unconditional guilty plea waives all non-jurisdictional defenses and cures all antecedent constitutional defects, allowing only an attack on the voluntary and intelligent character of the plea. E.g.,

United States v. Jackson, 697 F.3d 1141, 1144 (9th Cir.2012) (per curiam); . We agree with our colleagues in the First and Fifth Circuits that there is no constitutional impediment to a defendant, implicated in the underlying felony, waiving her Fifth Amendment privilege and voluntarily pleading guilty to a misprision count. See, e.g., ; ; .

Brizan‘s appeal accordingly must be dismissed pursuant to the waiver. See

Rahman, 642 F.3d at 1260. Brizan suggests that her lawyer provided ineffective assistance of counsel in connection with the plea, but we decline to address that issue on direct appeal. Brizan may raise such a claim in a collateral proceeding, where a complete record can be developed. See (declining to consider ineffective assistance on appeal but leaving open the possibility of such a claim in a subsequent collateral attack); see also (holding that a plea agreement that waives the right to file a collateral attack is unenforceable with respect to an ineffective assistance claim that challenges the voluntariness of the waiver). Because we must dismiss this appeal, we do not reach the merits of Brizan‘s remaining contentions.

DISMISSED.

LYNN ADELMAN

United States District Judge

* The Honorable Lynn Adelman, United States District Judge for the Eastern District of Wisconsin sitting by designation.

Notes

The district court initially did not see the waiver provision. However, after the Assistant United States Attorney brought the provision to the court‘s attention, the court reviewed its terms with Brizan, confirming that she understood and waived her appellate rights.

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