United States v. Lloyd Myers ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10580
Plaintiff-Appellee,
D.C. No.
v. 5:09-cr-01195-EJD-2
LLOYD MYERS,
Defendant-Appellant. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted
March 11, 2015—San Francisco, California
Filed September 14, 2015
Amended October 28, 2015
Before: M. Margaret McKeown, Mary H. Murguia,
and Michelle T. Friedland, Circuit Judges.
Order;
Opinion by Judge Murguia
2 UNITED STATES V. MYERS
SUMMARY*
Criminal Law
The panel affirmed a criminal judgment in a case in which
the defendant and the government reached a plea deal during
a settlement conference conducted by a magistrate judge.
The panel agreed with the defendant that United States v.
Davila, 133 S. Ct. 2139 (2013), makes clear that Fed. R.
Crim. P. 11(c)(1) imposes a categorical bar on judicial
participation in plea negotiations, even when the judicial
participation is both requested by the defendant and
sanctioned by the district court’s local rules.
The panel held that Rule 11(c)(1) is waivable by the
defendant, but could not say on this record that the defendant
knowingly waived Rule 11(c)(1). Because the defendant
failed to object at the time to judicial participation, the panel
reviewed the defendant’s unpreserved claim that the
settlement procedure violated Fed. R. Crim. P. 11 for plain
error. The panel held that the defendant failed to establish the
alleged error affected his substantial rights because the record
is bereft of evidence indicating that he suffered any prejudice
due to the magistrate judge’s participation in the settlement
conference. The panel observed that the settlement
conference helped the defendant reach a plea deal with the
government—something the defendant vigorously pursued
during the nearly three years of pretrial proceedings—which
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. MYERS 3
resulted in the defendant receiving a below-Guidelines
sentence.
COUNSEL
Michael K. Hinckley (argued), Law Offices of Michael
Hinckley, Berkeley, California, for Defendant-Appellant.
Owen P. Martikan, Assistant United States Attorney (argued),
Melinda Haag, United States Attorney, United States
Attorney’s Office, San Francisco, California, for
Plaintiff-Appellee.
ORDER
The Opinion filed September 14, 2015 is amended as
follows:
1. At slip op. page 20, lines 11–14, change “Even though
the magistrate judge’s participation in the settlement
conference amounts to Rule 11(c)(1) error, the “error” did not
cause Myers to plead guilty; the settlement conference merely
facilitated that result.” to “Even though the magistrate judge’s
participation in the settlement conference amounts to Rule
11(c)(1) error, there is no indication in the record that the
magistrate judge’s involvement caused Myers to plead
guilty—to the contrary, that is the result Myers had long
sought to achieve.”
2. At slip op. page 20, lines 15–17, change “It resulted in
Myers reaching a favorable plea agreement with the
government, avoiding trial, and receiving a below-Guidelines
4 UNITED STATES V. MYERS
sentence.” to “Moreover, Myers reached a favorable plea
agreement with the government, avoided trial, and received
a below-Guidelines sentence.”
With these amendments, the panel has voted to deny the
petition for panel rehearing and the petition for rehearing en
banc.
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for
rehearing en banc are DENIED (Doc. 52).
No further petitions for rehearing or rehearing en banc
will be entertained in this case.
OPINION
MURGUIA, Circuit Judge:
Lloyd Myers was indicted on ten fraud-related charges
stemming from his involvement in a Ponzi scheme he
operated with his brother-in-law. After nearly three years of
pretrial proceedings, Myers requested a judge-led criminal
settlement conference in accordance with the Northern
District of California’s Criminal Local Rule 11-1. The
prosecutor, initially opposed to the procedure due to the
rapidly approaching trial date, ultimately acquiesced to
Myers’s request. The district court referred the matter to a
magistrate judge to conduct a settlement conference. During
UNITED STATES V. MYERS 5
the proceeding, Myers and the government reached a plea
deal that was subsequently memorialized in a written plea
agreement between the parties. Myers later pled guilty to one
count of conspiracy to commit wire fraud in violation of
18 U.S.C. § 1349 and was sentenced to a below-Guidelines
sentence of eighteen months’ imprisonment.
Myers does not dispute that he voluntarily participated in
the settlement conference. Rather, he argues the procedure
violated Federal Rule of Criminal Procedure 11, which
prohibits “[t]he court” from “participat[ing] in [plea]
discussions.” Fed. R. Crim. P. 11(c)(1). Specifically, Myers
argues that the Supreme Court’s decision in United States v.
Davila, ––– U.S. ––––, 133 S. Ct. 2139 (2013), sets forth a
categorical rule prohibiting any judicial involvement in plea
negotiation, even, as is at issue here, when the judicial
participation is both requested by the defendant and
sanctioned by the district court’s local rules.
We agree that Davila makes clear that Rule 11(c)(1)
imposes a categorical bar on judicial participation in plea
negotiations. Because Myers failed to object at the time to
judicial participation, however, we review his unpreserved
Rule 11 claim for plain error, and we affirm. Myers has
failed to establish the alleged error affected his substantial
rights because the record is bereft of evidence indicating that
he suffered any prejudice due to the magistrate judge’s
participation in the settlement conference. Rather, the
settlement conference helped Myers reach a plea deal with
the government—something Myers vigorously pursued
during the nearly three years of pretrial proceedings—which
resulted in Myers receiving a below-Guidelines sentence.
6 UNITED STATES V. MYERS
I
In 2003, Myers and his brother-in-law, Rodney Hatfield,
created Landmark Trading Company, LLC, to solicit
investments and conduct financial transactions in the foreign
currency exchange markets (“Forex” transactions). Myers
and Hatfield had very little, if any, training or experience with
Forex trading. Between 2003 and 2006, Hatfield recruited
approximately forty investors, many of whom were fellow
congregation members from Myers’s and Hatfield’s place of
worship. Once funded, Hatfield transferred the money to a
Forex trading account, which Myers controlled and operated.
Myers and Hatfield received over $3,000,000 from investors,
but because Myers’s Forex trades were wildly unsuccessful,
Landmark never turned a profit. However, this was not the
information Myers and Hatfield represented to investors.
Rather, investors were told the company was flush with cash
and its investments consistently achieved monthly profits of
up to three percent. To disguise the company’s losses, Myers
and Hatfield used new investors’ funds to pay off other
investors. By early 2007, the scheme had reached a breaking
point: Myers and Hatfield reported to investors the value of
Landmark’s investment account was approximately
$2,154,415, when the account actually contained a meager
$4,615.
In December 2009, Myers and Hatfield were indicted in
the Northern District of California for one count of
conspiracy to commit wire fraud, in violation of 18 U.S.C.
§ 1349, and nine counts of wire fraud, in violation of
18 U.S.C. § 1343. Following numerous delays, trial was set
for March 2013. Leading up to the trial date, Myers and
Hatfield actively sought to reach a plea deal with the
government. For example, in August 2012, the parties
UNITED STATES V. MYERS 7
stipulated to a hearing continuance “to allow time for
defendants’ counsel to continue to work toward a resolution
of the case with the government.” The district court granted
the motion and set a status conference hearing for November
5, 2012.
During the November 5 status conference,1 after a brief
discussion about the progress of pretrial discovery, the district
court asked whether the parties wished to advance the trial
date. Myers’s counsel responded:
Well, you know, I think the Court’s intentions
are to keep the ball rolling, and our idea is to
have our feet to the fire . . . rather than having
them in the fire. I think what we have been
discussing, Your Honor, is possibly setting a
[Criminal Local Rule 11-1] settlement
conference prior to the Thanksgiving holiday.
Under the Northern District of California’s Criminal
Local Rule 11-1, titled “Voluntary Settlement Conference,”
the government and a criminal defendant “acting jointly” may
request that the district court refer the case to another judge
or magistrate judge to conduct a settlement conference. N.D.
Cal. Crim. R. 11-1(a). The “role of the settlement Judge is to
assist the parties in exploring a voluntary settlement in a
criminal case.”2 N.D. Cal. Crim. R. 11-1(c). The rule
1
Myers, who was living out of state at the time, waived appearing in
person at the November 5 hearing.
2
The district’s Alternative Dispute Resolution Local Rule 7-1 describes
the role of the judge presiding over the settlement conference. The rule
states:
8 UNITED STATES V. MYERS
expressly provides: “[a]ny party may unilaterally withdraw its
request for a settlement conference at any time.” N.D. Cal.
Crim. R. 11-1(d).
The government initially resisted Myers’s request for a
settlement conference. The prosecutor acknowledged that
Myers had made “good efforts in trying to resolve the matter
up until today,” but stated “the government’s ability to
resolve [the case without trial] would be rapidly diminishing”
given the approaching trial date. However, the government
ultimately agreed to Myers’s request and the district court
referred the matter to a magistrate judge to oversee the
settlement conference.
On December 14, 2012, the parties took part in a five-
hour settlement conference with the magistrate judge, where
Myers agreed, among other things, to plead guilty to one
count of conspiracy to commit wire fraud. A few weeks later,
Myers and the government entered into a written plea
agreement in which Myers agreed, among other things, to
“give up [his] right to appeal [his] conviction, the judgment,
and orders of the Court.”
In a settlement conference, a judicial officer, usually a
Magistrate Judge, facilitates the parties’ efforts to
negotiate a settlement. Some settlement Judges use
mediation techniques in the settlement conference to
improve communication among the parties, probe
barriers to settlement, and assist in formulating
resolutions. A settlement Judge might articulate views
about the merits of the case or the relative strengths and
weaknesses of the parties’ legal positions.
N.D. Cal. ADR R. 7-1.
UNITED STATES V. MYERS 9
The district court held a change of plea hearing in
February 2013. There, Myers acknowledged that he had
waived his right to appeal his conviction and sentence, and he
affirmed that his guilty plea was knowing and voluntary.
Myers expressed satisfaction with the quality of his
representation and confirmed that he was pleading guilty
because he was, in fact, guilty. The district court accepted
Myers’s guilty plea.
The district court sentenced Myers on October 15, 2013.
The district court imposed a sentence of 18 months’
imprisonment, below the 24-month sentence recommended
by Probation.
II
Federal Rule of Criminal Procedure 11 prohibits “[t]he
court” from participating in plea discussions. Fed. R. Crim.
P. 11(c)(1). The Federal Rules broadly define “[c]ourt” to
“mean[] a federal judge performing functions authorized by
law,” Fed. R. Crim. P. 1(b)(2), a definition which expressly
includes “a magistrate judge” executing his or her legal duty,
Fed. R. Crim. P. 1(b)(3)(B). While Rule 11(c)(1) appears to
prohibit any form of judicial participation in the plea
bargaining process, our “court previously approved the
participation by a settlement judge in plea negotiations.”
United States v. Scolari, 72 F.3d 751, 753 (9th Cir. 1995); see
United States v. Torres, 999 F.2d 376, 377–78 (9th Cir. 1993)
(per curiam) (holding that no Rule 11 violation occurred
when “[t]he parties . . . hammered out their agreement with
the assistance of [a settlement judge]” in accordance with the
then-existing criminal case settlement procedures for the
Southern District of California). Torres and Scolari did not
address, much less resolve, the conflict between the plain
10 UNITED STATES V. MYERS
language of Rule 11(c)(1)—which categorically prohibits
“[t]he court” from participating in plea negotiations—and the
local rule’s allowance of judge-led criminal settlement
conferences. Rather, these decisions appear to distinguish
criminal settlement conferences from the scope of Rule
11(c)(1) on the basis that “the sentencing judge . . . did not
participate in any plea bargaining.” Scolari, 72 F.3d at 753
(emphasis added); see Torres, 999 F.2d at 378. The Supreme
Court’s recent decision in Davila, 133 S. Ct. at 2139, is
irreconcilable with this reasoning.
In Davila, the defendant, dissatisfied with his
court-appointed attorney, sent a letter to the district court
requesting that a new attorney be appointed to represent him.
According to Davila, his lawyer advised him to plead guilty
and therefore “offered no defensive strategy.” 133 S. Ct. at
2143. The request for new counsel was referred to a
magistrate judge who, during an in camera hearing, made a
number of inappropriate comments urging Davila to plead
guilty and cooperate with the government.3 Id. at 2143–44.
3
For example, the magistrate judge instructed Davila that “it might be
a good idea” to accept responsibility and plead guilty because “the
Government . . . [has] all of the marbles in this situation and they can file
that . . . motion for [a] downward departure . . . if they want to.” Davila,
133 S. Ct. at 2144. Davila’s Sentencing Guidelines range, the judge
informed him, would “probably [be] pretty bad because [Davila’s]
criminal history score would be so high.” Id. The magistrate judge
further suggested that Davila could reduce his sentencing exposure by
“cooperat[ing] with the Government in this or in other cases,” stating:
You’ve got to go [to the cross] and you’ve got to tell it
all, Brother, and convince that probation officer that
you are being as open and honest with him as you can
possibly be because then he will go to the [D]istrict
[J]udge and he will say, you know, that Davila guy,
UNITED STATES V. MYERS 11
Davila pled guilty about three months later. He then
appealed, arguing that the magistrate judge’s comments
violated Rule 11. Id. at 2144–45. The Eleventh Circuit
agreed and vacated Davila’s guilty plea consistent with the
circuit’s then-existing rule requiring automatic vacatur for
Rule 11(c)(1) violations. Id. at 2145.
The government conceded that the magistrate judge’s
comments violated Rule 11(c)(1). The Supreme Court
acknowledged the concession, stating: “there is no room for
doubt on that score. The Magistrate Judge’s repeated
exhortations to Davila to ‘tell it all’ in order to obtain a more
favorable sentence . . . were indeed beyond the pale.” Id. at
2148. Having resolved the question of error, the Court next
addressed the issue presented in Davila: whether “the
violation of Rule 11(c)(1) by the Magistrate Judge warranted
automatic vacatur of Davila’s guilty plea,” as the Eleventh
Circuit had ruled. Id. at 2143, 2148.
The Court determined that automatic vacatur was not an
appropriate remedy for a violation of Rule 11(c)(1). Id. at
2148. Rather, like all trial errors, Rule 11(c)(1) violations
should be reviewed under either Rule 52(a)’s harmless-error
standard or Rule 52(b)’s plain-error standard, “depending on
when the error was raised.” Id. at 2147, 2150. The Court
explained the harmless-error standard applies to preserved
errors, while “the ‘plain-error rule[]’ [is] applicable when a
defendant fails to object to the error in the trial court.” Id. at
he’s got a long criminal history but when we were in
there talking about this case he gave it all up so give
him the two-level, give him the three-level reduction.
Id. (alterations in original).
12 UNITED STATES V. MYERS
2147. The Supreme Court remanded the case so that the
court of appeals could “reach[] [the] case-specific arguments
raised by the parties” in the first instance, including Davila’s
argument that the “extraordinary circumstances” of his case
warranted a departure from the general rule that the plain-
error standard governs the review of unpreserved errors. Id.
at 2150.
Myers argues that Davila sets forth a bright-line rule that
magistrate judges cannot participate in plea negotiations
under Rule 11(c)(1), even where, as here, the defendant
facilitated judicial involvement by specifically requesting a
judge-led settlement conference. The government conceded
error during oral argument. Although we are not bound by
the government’s legal concession, see United States v. Daas,
198 F.3d 1167, 1178 n.14 (9th Cir. 1999), we agree that
Davila undercuts the analysis upon which our court relied in
Torres and Scolari. The factual circumstances in Davila are
quite distinct from those present in Myers’s case, but
Davila’s interpretation of Rule 11 is clear: “Rule 11(c)(1)’s
prohibition of judicial involvement in plea discussions”
extends to magistrate judges who are neither the sentencing
judge nor the judge presiding over the defendant’s criminal
case. 133 S. Ct. at 2146 (emphasis added). Given this
directive, we cannot ignore that the plain language of Rule
11(c)(1) compels the application of the rule to the
circumstances here. See United States v. Petri, 731 F.3d 833,
839 (9th Cir. 2013) (“Because the Federal Rules of Criminal
Procedure, once effective, have the force and effect of law,
we apply traditional tools of statutory construction to
interpret them.” (internal quotation marks and citation
omitted)).
UNITED STATES V. MYERS 13
We observe that each decision of this court that has
expressly addressed the scope of Rule 11(c)(1) has similarly
concluded the Rule categorically bars judges from
participating in plea negotiations. See, e.g., United States v.
Kyle, 734 F.3d 956, 963 (9th Cir. 2013) (“We take this
opportunity to emphasize that Rule 11(c)(1) is intended to
eliminate all judicial pressure from plea discussions.”);
United States v. Gonzalez-Melchor, 648 F.3d 959, 964 (9th
Cir. 2011) (“We have explained previously that judicial
participation in plea negotiations is prohibited[.]”); United
States v. Bruce, 976 F.2d 552, 556 (9th Cir. 1992) (noting
Rule 11(c)(1) creates a “‘bright-line rule’ . . . bar[ring] a
judge from participating in plea bargaining”); see also United
States v. Baker, 489 F.3d 366, 371 (D.C. Cir. 2007)
(“[C]ourts have interpreted Rule 11 categorically to mean the
judge’s role is limited to acceptance or rejection of the plea
agreement after a thorough review of the relevant factors; the
judge should not participate in the plea bargaining process.”
(internal quotation marks omitted)); see also In re Benvin,
791 F.3d 1096, 1103 (9th Cir. 2015). Consistent with these
decisions, we conclude that Rule 11(c)(1) extends to the
magistrate judge’s participation in the settlement conference
at issue here.
We note that this means Northern District of California
Local Criminal Rule 11-1(a) was and is in conflict with Rule
11(c)(1). The local rule allowed judicial participation only
after Myers himself requested it, see N.D. Cal. Crim. R.
11-1(a), and also permitted Myers to withdraw from the
settlement conference “at any time,” see N.D. Cal. Crim. R.
11-1(d). While these facts bear on whether Myers voluntarily
waived Rule 11(c)(1)—which we address later in this
opinion—these procedural protections do not ameliorate the
conflict between the local rule and Rule 11(c)(1)’s categorical
14 UNITED STATES V. MYERS
bar on judges participating in plea negotiations. See Fed. R.
Crim. P. 57 (“A local rule must be consistent with . . . federal
statutes and rules . . . .”); United States v. Lopez-Cavasos,
915 F.2d 474, 477 (9th Cir. 1990).
III
The parties dispute whether Myers’s appeal waiver
precludes our consideration of the merits of his Rule 11
claim. Generally, “[a] defendant’s waiver of his appellate
rights is enforceable if (1) the language of the waiver
encompasses his right to appeal on the grounds raised, and
(2) the waiver is knowingly and voluntarily made.” United
States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005),
overruled on other grounds by United States v. Castillo,
496 F.3d 947, 957 (9th Cir. 2007) (en banc). Myers
acknowledges that he waived his right to appeal his
conviction and sentence in his plea agreement, but he
contends the waiver does not preclude our consideration of
his Rule 11 claim. See United States v. Brizan, 709 F.3d 864,
866 (9th Cir. 2013) (“We decline to enforce an appeal waiver
. . . if the district court failed to comply with Federal Rule of
Criminal Procedure 11[.]”). The government concedes that
an appeal waiver is generally not enforceable when the
district court violates Rule 11. However, the government
argues that Myers’s appeal waiver should be enforced
because Myers, by requesting the settlement conference,
invited the error and therefore waived his right to raise the
issue on appeal under the invited error doctrine.
“The doctrine of invited error prevents a defendant from
complaining of an error that was his own fault.” United
States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th Cir.
1992). Under the doctrine, an error is “waived and therefore
UNITED STATES V. MYERS 15
unreviewable” when “the defendant has both [1] invited the
error, and [2] relinquished a known right.” United States v.
Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc) (citing
United States v. Olano, 507 U.S. 725, 733 (1993)).
Here, with respect to Perez’s first inquiry, there is little
question Myers invited Rule 11 error. During the status
hearing on November 5, 2012, defense counsel requested the
settlement conference as a last-ditch effort to resolve the case
before trial. In counsel’s words, Myers wanted “to have [his]
feet to the fire” in a settlement conference “rather than having
them in the fire” at trial. While the government was initially
inclined to proceed to trial, it ultimately agreed to participate
in the settlement conference. The government notified Myers
that its “ability to resolve [the case without trial] would be
rapidly diminishing,” and with this in mind, Myers
participated in the judge-led settlement conference the
following month. Myers could have withdrawn from the
settlement conference at any time, yet he participated in the
process knowing full well the government would take the
case to trial if he preferred that route. Under these
circumstances, we have no trouble concluding that Myers
invited the Rule 11 error.
Because of the limited record before us, the second
showing required under Perez—“whether [Myers]
intentionally relinquished or abandoned a known right”—is
less clear. Perez, 116 F.3d at 845 (citing Olano, 507 U.S. at
733). As our en banc decision in Perez clarified, the Supreme
Court’s decision in “Olano limits our application of the
invited error doctrine to those rights deemed waived, as
opposed to merely forfeited, that is, ‘known right[s]’ that
have been ‘intentional[ly] relinquish[ed] or abandon[ed].’”
116 F.3d at 842 (alterations in original) (quoting Olano, 507
16 UNITED STATES V. MYERS
U.S. at 733). “Whether a particular right is waivable;
whether the defendant must participate personally in the
waiver; whether certain procedures are required for waiver;
and whether the defendant’s choice must be particularly
informed or voluntary, all depend on the right at stake.”
Olano, 507 U.S. at 733. Thus, to find that Myers waived
Rule 11(c)(1), we must find both that (1) a criminal defendant
can, in fact, waive Rule 11(c)(1), and (2) Myers knowingly
did so here.
As to the first inquiry, we hold that Rule 11(c)(1) is
waivable. In United States v. Mezzanatto, the Supreme Court
explained the provisions of “the Federal Rules of Criminal
Procedure . . . are presumptively waivable.” 513 U.S. 196,
201 (1995). Rule 11 is no exception. See, e.g., United States
v. Orm Hieng, 679 F.3d 1131, 1138 (9th Cir. 2012)
(defendant can waive right not to have the statements he
made during proffer discussions used against him (Rule
11(f)); United States v. Reyes, 313 F.3d 1152, 1158 (9th Cir.
2002) (defendant can waive right to withdraw a plea under
Rule 11(c)(5) if the waiver is knowing and voluntary). We
see no reason to hold Rule 11(c)(1) to a higher standard,
particularly in light of Davila’s reasoning “that violation of
Rule 11(c)(1) is [not] necessarily an error graver than” any
other Rule 11 violation. Davila, 133 S. Ct. at 2148–49. We
therefore hold that Rule 11(c)(1) can be waived by the
defendant.
On this record, however, we cannot say that Myers
knowingly waived Rule 11(c)(1). United States v. Abarca,
985 F.2d 1012, 1014 (9th Cir. 1993) (noting that an
enforceable waiver requires “[a] knowing and voluntary
waiver of a statutory right”). We note that the best practice
for a waiver of Rule 11(c)(1) is for the government to obtain
UNITED STATES V. MYERS 17
either a written waiver from the defendant, see Orm Hieng,
679 F.3d at 1138, or for the district court to confirm the
defendant is both aware of and voluntarily waives Rule
11(c)(1)’s prohibition of judicial involvement in plea
negotiations, see, e.g., Reyes, 313 F.3d at 1158–59. Neither
occurred here.
The government nonetheless urges us to conclude that
Myers waived Rule 11(c)(1) because, the government
contends, “[b]y proposing a magistrate judge’s participation
in settlement negotiations, Myers used the plea bargaining
process to obtain a favorable [. . .] agreement with the
government.” The government also points out that Myers
does not claim that his request for a settlement conference
was unintentional, or that it resulted from any kind of judicial
pressure. Rather, the government concludes, Myers waived
Rule 11(c)(1)’s protection “for his own tactical reasons,”
reasoning that Myers should not be allowed to “undo that
choice because he has doubts about it now.”
While the government’s arguments explain why Myers
requested the settlement conference, and the explanations
support a finding that Myers suffered no prejudice from the
alleged error, the government’s contentions do not establish
that Myers “intentionally relinquished . . . a known right.”
Perez, 116 F.3d at 845 (emphasis added). Moreover, Myers
argues the Rule 11 error only came to light after Davila was
decided, which was after Myers had participated in the
settlement conference and pled guilty. Particularly given the
confusion that could have been created by the local rule, and
the then-lack of guidance from Davila, we cannot conclude
on this record that Myers knowingly waived Rule 11.
18 UNITED STATES V. MYERS
IV
Generally, “where, as here, the defendant failed to raise
the Rule 11 violation before the trial court,” we review the
alleged error under the plain-error standard. Kyle, 734 F.3d
at 962; United States v. Dominguez Benitez, 542 U.S. 74, 76
(2004) (“Because the claim of Rule 11 error was not
preserved by timely objection, the plain-error standard of
Rule 52(b) applies.”). While we have recognized certain
exceptions to this general rule, see, e.g., Kyle, 734 F.3d at 962
(when a timely objection “was either unlikely or futile”),
none apply here.
Myers disagrees. He argues that because he only learned
of the Rule 11 violation after the Supreme Court decided
Davila on June 13, 2013—nearly six months after Myers’s
settlement conference took place—he was deprived of a
“meaningful opportunity to make a contemporaneous
objection” to the procedure. Myers also argues that an
objection to the settlement conference procedure would have
been futile since at the time he requested the procedure, it was
fully compliant with this Circuit’s law. Myers reasons that
the district court “would not have sustained any objection” to
the procedure because the court “clearly did not believe . . .
the settlement conference violated Rule 11(c)(1).”
These arguments are unavailing for a number of reasons.
First, nothing in the record indicates that Myers’s
participation in the settlement conference was anything but
voluntary—a point Myers’s appellate counsel conceded
during oral argument. Myers requested the procedure and
could have thereafter “unilaterally withdraw[n his] request for
a settlement conference at any time,” N.D. Cal. Crim. R. 11-
1(d), but he simply failed to do so. This failure supports
UNITED STATES V. MYERS 19
reviewing Myers’s alleged error under our plain-error
standard. See United States v. Vonn, 535 U.S. 55, 59 (2002)
(holding that “a silent defendant has the burden to satisfy the
plain-error rule”).
Moreover, the record establishes that Myers’s
participation in the settlement conference was a tactical
decision. Throughout the lengthy pretrial proceedings in this
case, Myers actively sought a plea agreement with the
government. The circumstances surrounding Myers’s request
for a settlement conference suggest that he requested—and
participated in—a settlement conference to further this goal.
Myers’s counsel requested the settlement conference four
months before the trial date only after the district court
inquired whether the parties wished to move up the trial date.
Notably, during the same hearing, the government informed
the district court it would soon be preparing for trial and as a
result “the government’s ability to resolve [the case without
trial] would be rapidly diminishing.” Thus, Myers
participated in the settlement conference knowing that if the
parties failed to reach a plea deal, the case would likely
proceed to a jury trial on the ten counts charged in the
Indictment.
We reject Myers’s contention that the timing of the
Supreme Court’s decision in Davila meant that he never had
an opportunity to object to the settlement conference
procedure. Myers correctly points out that Davila was
decided six months after he requested the settlement
conference. He fails to note, however, that the Court filed its
Davila decision four months before his sentencing. During
that time, Myers could have moved to withdraw his guilty
plea on the basis of the error he now alleges. He chose not to,
20 UNITED STATES V. MYERS
presumably in hope that the district court would impose a
more lenient sentence.
Under these circumstances, we see no reasons to deviate
from our general rule that the plain-error standard governs the
review of unpreserved errors. See Vonn, 535 U.S. at 73
(noting that failure to review unpreserved errors under the
plain-error standard creates a perverse incentive for
defendants to “simply relax and wait to see if the sentence
later struck him [or her] as satisfactory”); see also United
States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014) (“Because
[defendant] neither objected to the judge’s involvement in
plea discussions, nor made an attempt to withdraw his guilty
plea, we consider his appellate argument under the rigorous
plain error standard.”).
V
“Plain error is ‘(1) error, (2) that is plain, and (3) that
affect[s] substantial rights. . . . If all three conditions are met,
[we] may then exercise [our] discretion to notice a forfeited
error, but only if (4) the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.’” Kyle,
734 F.3d at 963 (alterations in original) (quoting United
States v. Cotton, 535 U.S. 625, 631 (2002) (internal citations
and quotations marks omitted)). Indeed, correcting an error
under “Rule 52(b) is permissive, not mandatory” and, as a
result, even “[i]f the forfeited error is ‘plain’ and ‘affect[s]
substantial rights,’ [we] ha[ve] authority to order correction,
but [are] not required to do so.” Olano, 507 U.S. at 735. We
decline the invitation here because Myers fails to establish
either that the alleged error affected his substantial rights or
that it seriously affected the fairness, integrity or reputation
of the judicial proceedings.
UNITED STATES V. MYERS 21
“[A] defendant who seeks reversal of his conviction after
a guilty plea, on the ground that the district court committed
plain error under Rule 11, must show a reasonable probability
that, but for the error, he would not have entered the plea.”
Dominguez Benitez, 542 U.S. at 83. To meet this standard,
Myers bears the burden to establish that, based on the totality
of the circumstances, “the probability of a different result is
‘sufficient to undermine confidence in the outcome’ of the
proceeding.” Id. (quoting Strickland v. Washington, 466 U.S.
668, 694 (1984)). Myers cannot make this showing. As we
discuss above, the Northern District’s settlement conference
procedure is not categorically impermissible: while the
procedure violates the plain letter of Rule 11(c)(1), the rule is
waivable at the defendant’s election. The record is devoid of
evidence that Myers’s participation in the settlement was
anything but voluntary, a point Myers’s appellate counsel
conceded during oral argument. Rather, the record indicates
that Myers wanted to avoid going to trial and participated in
the settlement conference to achieve this objective.
Throughout the pretrial proceedings, Myers actively sought
to reach a plea deal with the government. Even though the
magistrate judge’s participation in the settlement conference
amounts to Rule 11(c)(1) error, there is no indication in the
record that the magistrate judge’s involvement caused Myers
to plead guilty—to the contrary, that is the result Myers had
long sought to achieve. Moreover, Myers reached a favorable
plea agreement with the government, avoided trial, and
received a below-Guidelines sentence. Under these
circumstances, Myers has not established a reasonable
probability that he would not have pled guilty in the absence
of the alleged error, nor that he would not have participated
in the settlement conference had he been required to
expressly waive Rule 11(c)(1). See Dominguez Benitez,
542 U.S. at 83.
22 UNITED STATES V. MYERS
Moreover, even if Myers could establish that the alleged
error affected his substantial rights, we would not exercise
our discretion to correct the error because Myers’s voluntary
participation in the judge-led settlement conference that he
requested in no way “seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings.” See
Johnson v. United States, 520 U.S. 461, 469–70 (1997)
(“[E]ven assuming that the [alleged error] ‘affec[ted]
substantial rights,’ it does not meet the final requirement of”
the plain-error standard of review).
AFFIRMED.