UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CYNTHIA LEON MONTOYA, Defendant-Appellant.
No. 21-50129
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
September 13, 2022
D.C. No. 3:20-cr-02914-LAB-1
OPINION
Appeal from the United States District Court for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted March 10, 2022
Pasadena, California
Filed September 13, 2022
Before: Sandra S. Ikuta, Kenneth K. Lee, and Danielle J. Forrest, Circuit Judges.
Opinion by Judge Lee;
Concurrence by Judge Forrest
Criminal Law
The panel affirmed a criminal judgment in a case in which Cynthia Leon Montoya, who pleaded guilty to importing cocaine and methamphetamine, entered a plea agreement under
Montoya argued that she should be able to withdraw her guilty plea at the sentencing hearing because the district court “rejected” the non-binding sentencing recommendation under
The panel held that Montoya‘s remaining arguments fail. The magistrate judge‘s failure to specifically mention a “jury” trial during the plea colloquy, as required by
Concurring in the judgment, Judge Forrest wrote separately to say that to the extent this court‘s decision in United States v. Napier, 463 F.3d 1040 (9th Cir. 2006), holds that any condition of supervised release that is categorized
COUNSEL
Kent D. Young (argued), Law Offices of Kent D. Young, San Diego, California, for Defendant-Appellant.
D. Benjamin Holley (argued), Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Randy S. Grossman, Acting United States Attorney; United States Attorney‘s Office, San Diego, California; for Plaintiff-Appellee.
LEE, Circuit Judge:
After a short trip to Tijuana, Cynthia Leon Montoya headed back to the United States with her five young children in her minivan. But this was no family vacation or soccer mom jaunt. Montoya had strapped four bricks of cocaine to her back. And her 15-year-old son had packages of methamphetamine taped to him. U.S. Customs and Border Protection (CBP) agents discovered the cache of drugs, and Montoya ultimately pleaded guilty to importing cocaine and methamphetamine. While the district court sentenced her to 100 months’ imprisonment—below the U.S. Sentencing Guidelines range—it refused to follow the parties’ agreed-upon sentencing recommendation of 71 months.
Montoya now raises a panoply of challenges, including the novel arguments that (1) she should be able to withdraw her guilty plea at the sentencing hearing because the district court “rejected” the non-binding sentencing recommendation under
BACKGROUND
In August 2020, Montoya—a single-mom of five children between the ages 5 and 15—drove to Tijuana with all her kids in tow. On her return trip, she approached the San Ysidro Port of Entry in San Diego. Unfortunately for Montoya, a CBP agent conducted a search, yielding 4.4 kilograms of cocaine strapped to her. The officer then conducted a search of her 15-year-old sitting in the
Montoya admitted that she had agreed to smuggle these drugs from Mexico for $4,000. She said she knew that drugs were placed on her minor son‘s back. She also admitted that she had successfully transported drugs across the border multiple times.
Although Montoya initially entered a plea of not guilty, she agreed to plead guilty to two counts of
A magistrate judge held the change of plea hearing, and Montoya conveyed that she wanted to plead guilty. Throughout the proceeding, Montoya had help from an interpreter. The magistrate judge advised Montoya of her right to a “speedy and public trial,” right to confront witnesses, and right against self-incrimination, and he explained the consequences of pleading guilty. Montoya acknowledged that she understood her rights and the consequence of pleading guilty.
At the sentencing hearing, the district court accepted Montoya‘s guilty plea and calculated Montoya‘s Sentencing Guidelines range as 135 to 168 months after reviewing the Presentence Report (PSR); Montoya‘s sentencing memorandum, requests for departure, psychological evaluation, and psychologist‘s report; the mitigation letters written by and for Montoya; the parties’ sentencing summary charts; and the plea agreement. The court extensively questioned Montoya‘s counsel about the number of times Montoya crossed the border with drugs, the inconsistency between her post-arrest and presentence interviews, and details of her encounters with the drug traffickers. The court found that Montoya did not play a minor role, was not coerced into trafficking drugs, and was thus not entitled to an eight-level reduction to her Guidelines range.
Given the “very aggravated” facts—mainly Montoya‘s “complicity” in the “involv[ement]” of her children with drug traffickers—the court “reject[ed]” the joint sentencing recommendation in the plea agreement. It explained that the sentencing recommendation was “outrageous” and “unsupported” because Montoya “watch[ed] the architects of this drug importation scheme put almost five kilos,
The district court then imposed a below-Guidelines sentence of 100 months’ imprisonment plus five years of supervised release, after considering the factors provided in
Montoya timely appeals the legality of her plea and sentence. We have jurisdiction under
STANDARD OF REVIEW
When a defendant does not object below, we review for plain error. United States v. Ferguson, 8 F.4th 1143, 1145 (9th Cir. 2020). “To establish plain error, a defendant must show ‘(1) error, (2) that is plain, (3) that affected substantial rights, and (4) that seriously affected the fairness, integrity or public reputation of the judicial proceedings.‘” Id. at 1145–46 (citation omitted). The third prong requires that
ANALYSIS
I. Montoya could not withdraw her plea at the sentencing hearing.
Montoya entered a plea agreement under
A type-B plea agreement provides that, if the defendant pleads guilty, the government will “recommend, or agree not to oppose the defendant‘s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply,” though “such a recommendation or request does not bind the court.”
Because the district court noted that it “reject[ed]” Montoya‘s plea agreement, Montoya argues that it actually found the plea agreement to be a
But the district court‘s use of “reject” in the context of a type-B plea agreement has no legal effect. Simply put, a court cannot transform a non-binding type-B plea agreement (with no right to withdraw) into a binding type-C plea agreement (with the right to withdraw) just because it used the word “reject.” The district court‘s “rejection” of a type-B plea agreement to a recommended sentence could logically mean only that the court rejected the recommendation itself. The district court thus did not
Montoya was permitted to withdraw her guilty plea before sentencing only if she could “show a fair and just reason for requesting the withdrawal.”
II. The district court was not required to orally pronounce standard conditions of supervised release.
Montoya also challenges the district court‘s imposition of standard conditions of supervised release. She argues that the court erred by imposing standard conditions in a written judgment without orally pronouncing them at the sentencing hearing. That error, according to Montoya, violated her right to be present at the sentencing hearing and her right to
The imposition of a sentence occurs at the sentencing hearing, so the district court must orally pronounce a sentence. United States v. Aguirre, 214 F.3d 1122, 1125 (9th Cir. 2000);
Under our precedent, the district court need not orally pronounce conditions that are mandatory under
Here, the written judgment does not conflict with the oral pronouncement of the sentence. While the district court did not pronounce its imposition of Montoya‘s standard conditions, the court‘s oral sentence “necessarily included” them under Napier. Id. We do not hold that the district court‘s oral imposition of other conditions of supervised release unambiguously asserted that it intended to impose only those conditions. Thus, Montoya‘s sentence at the hearing was unambiguous, and the district court did not violate Montoya‘s right to be present when it imposed standard conditions in the written judgment.
Montoya contends that our discussion of standard conditions in Napier was dicta and asks us to adopt the framework of the Fourth, Fifth, and Seventh Circuits’ recent decisions. See United States v. Anstice, 930 F.3d 907, 910 (7th Cir. 2019); United States v. Diggles, 957 F.3d 551, 557–59 (5th Cir. 2020) (en banc); United States v. Rogers, 961 F.3d 291, 297–98 (4th Cir. 2020). Those circuits distinguish between mandatory/required and discretionary conditions, rather than standard and nonstandard conditions, tying the distinction to
We recognize that our current framework conflicts with three other circuits’ analysis, and those other circuits’ decisions may be easier to apply and perhaps more true to the statutory text. But we cannot ignore our precedent even if we disagree with it. While it is better practice for the district court to orally advise defendants of standard conditions of supervised release, the district court did not have to do so under our precedent. Id.
A. The magistrate judge did not specifically mention a “jury” trial during the plea colloquy, but that error did not affect Montoya‘s substantial rights.
Before accepting a defendant‘s guilty plea,
Under plain-error review, Montoya is not entitled to a reversal of her convictions. See Ferguson, 8 F.4th at 1145 (reaffirming that “a Rule 11 error doesn‘t automatically lead to reversal” and “a defendant must continue to show a Rule 11 violation‘s impact on substantial rights before we will undo a guilty plea“). She has not shown that, but for the error, she would have pleaded differently. See Dominguez Benitez, 542 U.S. at 76. In fact, on appeal, Montoya does not even contend that she would not have entered a guilty plea if the magistrate judge had explicitly told her about the right to a jury trial. See United States v. Delgado-Ramos, 635 F.3d 1237, 1241 (9th Cir. 2011) (“[B]ecause [the defendant] does not assert on appeal that he would not have entered the plea ‘but for the [district court‘s alleged] error,’ he has not demonstrated the ‘probability of a different result’
The record also contains evidence showing that Montoya knew she had a right to a jury trial. Montoya read and signed a plea agreement that informed her that she was giving up “a speedy and public trial by jury,” and she later told the magistrate judge that she understood her plea agreement and did not have any questions about it. Montoya thus failed to show that her substantial rights were affected. See United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) (“Because [the defendant] knew the reasonable doubt standard applied, he cannot establish ‘a reasonable probability that, but for the [Rule 11] error, he would not have entered the guilty plea.‘” (second alteration in original) (citation omitted)).
B. The magistrate judge properly determined that Montoya was competent and that her guilty plea was voluntary.
The facts in Fuentes-Galvez are a far cry from the ones before us. In that case, “we ruled that the magistrate‘s failure to ‘engage in direct inquiries regarding force, threats, or
C. The district court properly considered and explained its reasons for rejecting Montoya‘s variance requests.
Montoya further argues that the district court erred when it “summarily rejected” her requested variances for imperfect duress and mental health conditions. Montoya did not object below, so we again review for plain error. United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009). We hold that the district court properly considered and
The district court is “required to explain the reasons for imposing a particular sentence.” Id. at 1104. “[W]hen a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, [] the judge should normally explain why he accepts or rejects the party‘s position.” Carty, 520 F.3d at 992–93. “The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007); see also Carty, 520 F.3d at 992. But the court “need not tick off each of the § 3553(a) factors to show that it has considered them.” Carty, 520 F.3d at 992.
The record shows that the district court considered Montoya‘s arguments. The court reviewed all relevant documents in preparation for the hearing, and it acknowledged Montoya‘s diagnosis of major depression and recognized that Montoya had suffered physical and emotional abuse in the past. Before imposing its sentence, the court questioned Montoya‘s counsel about the number of times Montoya smuggled drugs across the border, the inconsistency between her post-arrest and presentence interviews, and the particulars of her encounters with the drug traffickers.
The court explained that it was not persuaded by Montoya‘s arguments and gave a reasoned basis for exercising its authority. See Rita, 551 U.S. at 356. It was not convinced that Montoya was coerced into trafficking drugs and found her claim of duress undermined by the promise of payment, inconsistencies in her story, and the lack of corroboration. The court also told Montoya why it
D. The district court did not abuse its discretion by imposing a 100-month sentence.
Finally, Montoya challenged the reasonableness of her sentence. She argues that it is substantively unreasonable because the district court allegedly glossed over her history and characteristics, including her lack of criminal history. We review the substantive reasonableness of her sentence for abuse of discretion. Carty, 520 F.3d at 988. “Reversal is not justified simply because this court thinks a different sentence is appropriate.” United States v. Laurienti, 731 F.3d 967, 976 (9th Cir. 2013) (cleaned up). We “only vacate a sentence if the district court‘s decision not to impose a lesser sentence was ‘illogical, implausible, or without support in inferences that may be drawn from the facts in the record.‘” Id. (citation omitted).
Given the district court‘s broad discretion in imposing a sentence, it did not abuse its discretion. Montoya does not dispute that the district court accurately calculated her Guidelines range as 135 to 168 months. Nor does she argue that the district court treated the Guidelines as mandatory. In those circumstances, we have found that the district court erred. See United States v. Bendtzen, 542 F.3d 722, 728 (9th Cir. 2008). Instead, Montoya contests the district court‘s imposition of a below-Guidelines sentence that considered the § 3553 factors. While we may not necessarily agree with the sentence imposed, a below-Guidelines sentence will usually be reasonable. See Bendtzen, 542 F.3d at 729. Montoya thus fails to show how the court‘s downward variance of 35 months was so insufficient as to constitute an abuse of discretion or make her sentence substantively unreasonable.
The district court is AFFIRMED.
FORREST, Circuit Judge, concurring in the judgment:
I concur in full in the opinion. I write separately because to the extent our decision in United States v. Napier, 463 F.3d 1040, 1043 (9th Cir. 2006), holds that any condition of supervised release that is categorized as “standard” need not be orally pronounced as part of the judgment at sentencing, it was wrongly decided.
Criminal defendants have a right to be physically present at their sentencing. United States v. Ornelas, 828 F.3d 1018, 1021 (9th Cir. 2016). This right is express in
In Napier, we explained that supervised release conditions are “implicit in an oral sentence imposing supervised release“—and therefore are not constitutionally required to be orally announced—when they are (1) mandated by statute or (2) “recommended by the [Sentencing] Guidelines as standard, boilerplate conditions of supervised release.” Id. at 1042–43. We concluded that
While the Sentencing Guidelines classify supervised release conditions as either “mandatory,” “discretionary,” “standard,” or “special,” see USSG § 5D1.3, the statute governing imposition of supervised release conditions,
Napier correctly concluded that a defendant‘s right to be present at sentencing is not violated if mandatory conditions are not orally imposed. Napier, 463 F.3d at 1043. Mandatory conditions are required by law and thus are necessarily part of a defendant‘s sentence regardless of any objection that the defendant might raise. United States v. Diggles, 957 F.3d 551, 558 (5th Cir. 2020) (“When a condition is mandatory, there is little a defendant can do to defend against it.“), cert. denied, 141 S. Ct. 825 (2020). But when a condition is discretionary—meaning the sentencing judge must exercise judgment in determining whether to impose the condition or not—a defendant must be given an opportunity to challenge whether the condition meets the section 3583(d) criteria. United States v. Rogers, 961 F.3d 291, 297–98 (4th Cir. 2020). A defendant is deprived of making such a challenge if the sentencing judge does not orally pronounce the discretionary condition giving the defendant notice that it will be imposed as part of the sentence. This is true
As such, I would join the Fourth, Fifth, and Seventh Circuits in holding that all discretionary conditions, even those labeled “standard” by the Sentencing Guidelines, must be orally pronounced to comply with a defendant‘s right to be present at sentencing. See Rogers, 961 F.3d at 296 (“[A]ll non-mandatory conditions of supervised release must be announced at a defendant‘s sentencing hearing.“); Diggles, 957 F.3d at 558 (“If a condition is required, making an objection futile, the court need not pronounce it. If a condition is discretionary, the court must pronounce it to allow for an objection.“); United States v. Anstice, 930 F.3d 907, 910 (7th Cir. 2019) (“As commonplace and sensible as these . . . [discretionary] conditions may be across federal sentences, Congress has not mandated their imposition. If a district court does choose to impose them, they must be announced at sentencing.“). As the Fourth Circuit persuasively explained: “[C]onditions are mandated by statute, or they are not. And if they are not – if they instead are discretionary and authorized only after individualized assessment and consideration of § 3583(d)‘s factors – then we cannot deem them ‘implicit’ in every oral sentence imposing a term of supervised release, no matter the particular circumstances.” Rogers, 961 F.3d at 299 (internal quotation marks and citations omitted). Accordingly, we should revisit en banc Napier‘s holding that standard conditions need not be orally pronounced as part of sentencing.