United States v. Pavel Valkovich , 417 F. App'x 689 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 02 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-50137
Plaintiff - Appellee, D.C. No. 2:09-cr-00511-PA-1
v.
MEMORANDUM*
PAVEL IGOREVICH VALKOVICH,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted February 11, 2011**
Pasadena, California
Before: GOODWIN, D.W. NELSON, and N.R. SMITH, Circuit Judges.
Pavel Igorevich Valkovich appeals his conviction after a guilty plea and
sentencing for solicitation of a crime of violence in violation of 18 U.S.C. § 373.
He claims that (1) the district court improperly influenced him to plead guilty;
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(2) failed to consider defendant-specific facts in imposing the sentence; and his
sentence is (3) procedurally and (4) substantively unreasonable. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. The District Court’s Participation in the Plea Process
The district court did not commit plain error when it stated during a pretrial
conference that “this case should be resolved short of trial” or when it responded to
defense counsel’s request to “extrapolate on” this statement by stating “the
defendant needs treatment” and “I’m just not sure that having a trial is ultimately in
everybody’s best interest in this case.” See United States v. Vonn, 535 U.S. 55, 59
(2002). While a district court “must not participate in [plea discussions],” Fed. R.
Crim. P. 11(c)(1), Rule 11 is not intended to “establish a series of traps for
imperfectly articulated oral remarks,” United States v. Frank, 36 F.3d 898, 903
(9th Cir. 1994). Instead, the court’s inquiry should be whether “the judge
pressures the defendant into taking the deal.” United States v. Andrade-Larrios, 39
F.3d 986, 989 (9th Cir. 1994).
The transcript shows that the district court’s statements did not target
Valkovich in an attempt to coerce him into taking a plea agreement. Thus, the
district court did not commit plain error under Rule 11.
2. Competency Hearing
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The transcript of the pretrial status conference and change of plea hearing
demonstrate that a reasonable judge would not “be expected to experience a
genuine doubt” about Valkovich’s competence and order a competency hearing sua
sponte. United States v. Lewis, 991 F.2d 524, 527 (9th Cir. 1993) (internal
quotation marks and citation omitted).
The district court inquired about Valkovich’s mental illness, medications,
and drug use issues. Valkovich was not on a suicide watch and had been cleared
by a doctor to appear in court. In addition, Valkovich’s attorney confirmed that
Valkovich was competent to plead guilty at the change of plea hearing. The
change of plea hearing transcript showed that Valkovich had “sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding-and [] he ha[d] a rational as well as factual understanding of the
proceedings against him.” Drope v. Missouri, 420 U.S. 162, 172 (1975).
3. Procedural Reasonableness
The district court did not commit plain error in considering Valkovich’s
doctor’s affidavits rather than hearing testimony because crediting the affidavits
was within the district court’s discretion. See United States v. Berry, 258 F.3d
971, 976 (9th Cir. 2001) (“Where, as here, the district court allows the defendant to
rebut the recommendations and allegations of the presentence report either orally
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or through the submission of written affidavits or briefs, Rule 32 does not require
an evidentiary hearing.”).
4. Substantive Reasonableness
The district court did not abuse its discretion when it sentenced Valkovich to
180 months for the solicitation charge. See United States v. Amezcua-Vasquez, 567
F.3d 1050, 1055 (9th Cir. 2009). The district court considered “defendant-specific
facts” when it discussed Valkovich’s mental health issues and issued a below
guideline and below maximum sentence in consideration of those factors. Id. at
1057. In addition, a review of the transcript does not leave us with a “firm
conviction” that Valkovich’s sentence is a “clear error of judgment.” Id. at 1055.
Valkovich created a plan to kill another human being. He gave specific
instructions that required coordinating other people to carry out the murder.
AFFIRMED.
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