United States v. Jamal Shehadeh ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10399
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00038-MCE-1
JAMAL SHEHADEH,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted December 2, 2019
San Francisco, California
Filed June 18, 2020
Before: Eugene E. Siler, * Jay S. Bybee,
and Ryan D. Nelson, Circuit Judges.
Opinion by Judge R. Nelson
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. SHEHADEH
SUMMARY **
Criminal Law
The panel affirmed a criminal judgment in a case in
which the defendant (1) moved to withdraw his guilty plea
after he was sentenced to a mandatory thirty-year prison
term and before the district court entered an amended
judgment ordering restitution, and (2) filed his notice of
appeal the day after the district court entered the amended
judgment.
Rejecting the government’s argument that the notice of
appeal is untimely because the defendant did not appeal
within fourteen days of the district court’s entry of judgment
of his custodial sentence, the panel held that where a district
court defers its restitution order, a defendant wishing to
appeal his conviction and sentence of imprisonment may
enter a notice of appeal either within fourteen days following
the district court’s entry of the custodial sentence, or within
fourteen days of the entry of the amended judgment, which
includes the amount of restitution.
The panel held that the district court erred in determining
that it lacked jurisdiction to allow the defendant to withdraw
his guilty plea. The panel explained that because the district
court had delayed a final sentence by deferring restitution, it
had jurisdiction to allow the defendant to withdraw his guilty
plea until the final restitution order if he presented a fair and
just reason for doing so. The panel concluded that the
**
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. SHEHADEH 3
district court did not plainly err when it denied the motion to
withdraw his guilty plea, as it was knowing and voluntary.
The panel held that the waiver in the defendant’s plea
agreement bars his claims that the district court violated his
Sixth Amendment right to a public trial and that the record
lacked information required by Fed. R. Crim. P. 32 where
the district court proceeded immediately to sentencing
without preparation of a presentence report. The panel
concluded that the record is not sufficiently developed to
entertain on direct appeal the defendant’s claim of
ineffective assistance of counsel.
COUNSEL
David D. Fischer (argued), Law Offices of David D. Fischer
APC, Rocklin, California, for Defendant-Appellant.
Christopher S. Hales (argued) and Michael D. Anderson,
Assistant United States Attorneys; Camil A. Skipper,
Appellate Chief; McGregor W. Scott, United States
Attorney; United States Attorney’s Office, Sacramento,
California; for Plaintiff-Appellee.
OPINION
R. NELSON, Circuit Judge:
Defendant-Appellant Jamal Shehadeh appeals the
district court’s denial of his motion to withdraw his guilty
plea. We hold Shehadeh’s appeal was timely because it was
filed within fourteen days of entry of the amended judgment.
We affirm the district court’s refusal to allow Shehadeh to
4 UNITED STATES V. SHEHADEH
withdraw his guilty plea, as it was knowing and voluntary.
The remainder of Shehadeh’s claims are waived, and we do
not consider his ineffective assistance of counsel claim for
the first time on appeal.
I
On February 9, 2018, Jamal Shehadeh signed an
agreement to plead guilty to two counts of arson to commit
a felony. The plea agreement included promises by the
government not to charge Shehadeh’s wife or sister for
witness tampering and not to pursue forfeiture against a
house owned by Shehadeh’s ex-wife. At defense counsel’s
request for a plea hearing “asap” with immediate sentencing,
the district court held a change of plea hearing the next
evening.
At the hearing, the district court inquired whether the
plea was voluntary or had been induced by any threats or
promises other than those contained in the plea agreement.
Shehadeh affirmed that he was pleading guilty because he
had actually committed the crimes at issue, and that no one
had threatened him or made any promises to induce his plea.
The government noted it was not “trying to force a plea or
encourage a plea by making any threats or assertions”
against his wife, sister, or ex-wife. Shehadeh then affirmed
that there was no undue pressure. Shehadeh pled guilty, and
affirmed he was aware that he waived his right to appeal the
guilty plea, conviction, and the sentence imposed if the
sentence did not exceed thirty years.
The district court entered judgment on February 14,
2018, sentencing Shehadeh to a mandatory thirty years in
prison as required by statute, but deferring an order on
restitution for a later date.
UNITED STATES V. SHEHADEH 5
Two months later, Shehadeh filed a motion to withdraw
his guilty plea, and a hearing to withdraw was held four
months later still. The district court denied the motion to
withdraw, holding it lacked jurisdiction because it had
already sentenced Shehadeh to imprisonment when he
moved to withdraw his plea. The district court thereafter
entered an amended judgment ordering restitution on
October 9, 2018. Shehadeh filed a notice of appeal the next
day.
II
A defendant must file a notice of appeal within fourteen
days of “the entry of either the judgment or the order being
appealed.” Fed. R. App. P. 4(b)(1)(A)(i). Shehadeh
contends his appeal was timely because he filed it within
fourteen days of the district court’s entry of its amended
judgment ordering restitution. The government argues
Shehadeh’s appeal is untimely because he did not appeal
within fourteen days of the district court’s entry of judgment
announcing his custodial sentence.
The government relies on Manrique v. United States,
137 S. Ct. 1266 (2017), in which the Supreme Court held
that a single notice of appeal, filed between the initial
judgment ordering sentencing and the amended judgment
ordering restitution, is not sufficient to invoke appellate
review of a later judgment awarding restitution. Id. at 1270.
The government argues that because “deferred restitution
cases involve two appealable judgments, not one,” id.
at 1273, Shehadeh was required to appeal within fourteen
days of the district court’s entry of judgment on Shehadeh’s
custodial sentence in February. Instead, Shehadeh waited to
appeal until after the district court entered its amended
judgment ordering restitution six months later.
6 UNITED STATES V. SHEHADEH
Manrique only held that a notice of appeal filed after a
sentence of imprisonment does not “spring forward” to
become effective to appeal an order of restitution entered
later. Id. The Court did not address the opposite issue
presented here: is a defendant’s notice of appeal after an
amended judgment ordering restitution timely to appeal the
initial judgment of conviction and sentencing? We hold that
in these circumstances it is.
It is true that, after Manrique, Shehadeh could have filed
an appeal within fourteen days after the initial judgment
imposing his custodial sentence. Id. But he was not required
to do so. Our conclusion today is that, where a district court
defers its restitution order, a defendant wishing to appeal his
conviction and sentence of imprisonment may enter a notice
of appeal either within fourteen days following the district
court’s entry of the custodial sentence, or within fourteen
days of the entry of the amended judgment, which includes
the amount of restitution.
Here, the judgment being appealed is the amended
judgment entered by the district court on October 9, 2018.
This notice of appeal, timely filed after the district court had
decided all remaining issues in the case, was sufficient to
appeal the plea, the initial custodial sentence, and the final
restitution order.
While the majority in Manrique did not specifically
address the question presented here, it noted that both the
“initial judgment” and the “amended judgment” were
separately appealable orders. Id. at 1272 (citing Dolan v.
United States, 560 U.S. 605, 617–18 (2010)). The Court
looked to the language of 18 U.S.C. § 3742(a), which
provides that a “defendant may file a notice of appeal in the
district court for review of an otherwise final sentence.” Id.
at 1271. And “[b]y deferring restitution, the court is
UNITED STATES V. SHEHADEH 7
declining to announce a sentence.” Id. at 1273. Our holding
today is thus at least suggested by the Court’s reasoning in
Manrique and the plain language of § 3742(a).
Indeed, two justices appear to have read Manrique to
allow the result we reach. See id. at 1274 (Ginsburg, J.,
dissenting) (“[A] defendant wishing to appeal his sentence
and conviction when a restitution determination has been
deferred has two choices: (1) He may immediately appeal
his conviction and sentence of imprisonment, and later
appeal the restitution order when made; or (2) he may await
the restitution order and then appeal, through a single notice,
his conviction, sentence of imprisonment, and restitution
order.”). While we are not bound to follow a view expressed
by just two justices in dissent, we find the conclusion logical,
particularly considering the majority did not present a
contrary view.
Corey v. United States, 375 U.S. 169 (1963), is also
instructive. In Corey, the district court sentenced a
defendant to a maximum term of custody and required the
Bureau of Prisons to study the defendant for up to three
months, pursuant to 18 U.S.C. § 4208(b). Id. at 170. The
district court then reconsidered the defendant’s sentence in
light of the report and issued a final sentence. Id. The
defendant did not appeal until after the district court’s final
sentence. Id. The Supreme Court held the defendant could
have appealed within ten days of his original commitment to
prison, or within ten days of the final sentencing. “While an
initial commitment . . . is, as we have pointed out, freighted
with sufficiently substantial indicia of finality to support an
appeal, the fact remains that the proceedings in the trial court
are not actually terminated until after the period of
diagnostic study, review of the same by the district judge,
and final sentence.” Id. at 175. Thus, “[l]ong-accepted and
8 UNITED STATES V. SHEHADEH
conventional principles of federal appellate procedure
require recognition of the defendant’s right to await the
imposition of final sentence before seeking review of the
conviction.” Id. at 176. 1
Those same long-accepted principles support our
decision here. Because restitution is an aspect of sentencing,
see Fed. R. Crim. P. 11 advisory committee’s note to 1985
amendment, Shehadeh’s sentence was not final until the
amended judgment issuing restitution was ordered. See also
Manrique, 137 S. Ct. at 1273 (“By deferring restitution, the
court is declining to announce a sentence.”). We will not
disturb his right to await that sentence before appealing. 2
III
Shehadeh challenges the district court’s holding that it
lacked jurisdiction over his motion to withdraw, claims that
the district court violated his Sixth Amendment rights, and
raises, for the first time on appeal, an ineffective assistance
of counsel claim. While we hold the district court had
jurisdiction over the motion to withdraw the plea, the district
court did not plainly err in denying the motion because
Shehadeh’s plea was knowing and voluntary. The remainder
of Shehadeh’s claims are barred by the appellate waiver in
1
The Court also noted that the defendant’s decision to appeal might
depend on the severity of the final sentence. Corey, 375 U.S. at 176. So
too in deferred restitution cases; the amount of restitution is a factor a
defendant may consider in deciding whether to appeal.
2
Judicial economy also favors this rule. The government’s
proposed rule would require a defendant to appeal twice: first,
immediately after the custodial sentence is imposed, and then again after
the amount of restitution is determined. This rule would be inefficient,
and it is required neither by Manrique nor by the Federal Rules of
Appellate Procedure.
UNITED STATES V. SHEHADEH 9
his plea agreement. And we decline to consider his
ineffective assistance of counsel claim for the first time on
appeal.
A
We review whether the district court had jurisdiction to
allow the defendant to withdraw his plea de novo. See
United States v. Aguilar-Reyes, 653 F.3d 1053, 1055 (9th
Cir. 2011). A defendant may withdraw a guilty plea after the
court accepts the plea, but before it imposes sentence, if “the
defendant can show a fair and just reason” for withdrawal.
Fed. R. Crim. P. 11(d)(2)(B). Once the district court has
imposed its sentence, the defendant may no longer withdraw
the plea. Fed. R. Crim. P. 11(e). The district court held it
lacked jurisdiction to allow Shehadeh to withdraw his guilty
plea because it had sentenced Shehadeh to prison over two
months before he filed his motion to withdraw. But the
district court erred in that determination. As we have already
noted, “[b]y deferring restitution, the court is declining to
announce a sentence.” Manrique, 137 S. Ct. at 1273.
Because the district court had delayed a final sentence by
deferring restitution, it had jurisdiction to allow Shehadeh to
withdraw his guilty plea until the final restitution order if he
presented a “fair and just reason” to do so. Fed. R. Crim. P.
11(d)(2)(B). 3
B
Although the district court had jurisdiction to allow
Shehadeh to withdraw his plea, we conclude the district
3
Our holding is also consistent with the Fifth Circuit’s reasoning in
United States v. Corn, 836 F.2d 889, 894 (5th Cir. 1988) (stating a
defendant could have moved to withdraw his guilty plea any time
between the sentencing hearing and final order of restitution).
10 UNITED STATES V. SHEHADEH
court did not plainly err when it denied Shehadeh’s motion
to withdraw. See Fed. R. Crim. P. 11(d)(2)(B). Shehadeh
contends he was entitled to withdraw his plea because:
(1) the plea was a result of the government’s threat to
prosecute his family members, and (2) the plea was impacted
by a health episode that Shehadeh experienced on the day
before the change of plea hearing. Both arguments are
unavailing.
Because Shehadeh did not object during his plea
colloquy regarding the alleged government coercion or with
respect to his health, this Court reviews for plain error. See
United States v. Escamilla-Rojas, 640 F.3d 1055, 1061–62
(9th Cir. 2011). We find no error here, much less any error
that affected the defendant’s substantial rights or seriously
affected the fairness, integrity, or public reputation of
judicial proceedings. See Rosales-Mireles v. United States,
138 S. Ct. 1897, 1904–05 (2018).
First, the district court did not err, let alone plainly err,
in determining that Shehadeh’s plea was not coerced. The
district court, as required, addressed Shehadeh in open court
and determined his plea was voluntary and did not result
from force, threats, or promises (other than promises in the
plea agreement). Fed. R. Crim. P. 11(b)(2). Specifically,
Shehadeh affirmed that he entered his pleas voluntarily and
because he was guilty, and that no one had threatened him or
made any promises to try to induce him to plead guilty. The
government interjected that it did not threaten to prosecute
the defendant’s family members or forfeit his ex-wife’s
property. And Shehadeh affirmed there was no undue
pressure.
Based on its several inquiries as to the voluntariness of
Shehadeh’s plea, the district court properly credited
Shehadeh’s testimony at the Rule 11 hearing over his
UNITED STATES V. SHEHADEH 11
subsequent claims of coercion. See United States v.
Castello, 724 F.2d 813, 815 (9th Cir. 1984). “We will not
upset the trial court’s findings of fact unless they are clearly
erroneous.” Id. Accordingly, we hold the district court did
not err in concluding that Shehadeh’s plea was not coerced
by threats or promises not to prosecute his family or forfeit
their property.
The district court also did not plainly err in rejecting
Shehadeh’s argument that his plea was involuntary in light
of his health. The day before his plea hearing, Shehadeh
passed out, and then walked under his own power with “a
steady gaits [sic]” and “erect posture” to the medical floor.
In a letter to the district court, filed two weeks after his plea
hearing, Shehadeh described this episode as fainting or
losing consciousness. In a second letter, filed nearly two
months after the plea hearing, Shehadeh described the
episode as a “stroke.” Shehadeh now argues his plea was
involuntary due to this stroke or fainting. But on the day of
the health episode, Shehadeh told medical personnel “that he
did not pass out or faint but just felt a little dizzy,” and
“insist[ed] he[] [was] fine . . . and want[ed] to go back to his
cell.” Additionally, nothing in the plea colloquy suggests
Shehadeh was mentally impaired. Accordingly, the district
court did not err in concluding Shehadeh’s pleas were
knowing and voluntary.
C
Because Shehadeh’s plea was knowing and voluntary,
the waiver in his plea agreement bars his remaining claims
that the district court violated his Sixth Amendment right to
a public trial and that the record lacked information required
by Federal Rule of Criminal Procedure 32 because the
district court proceeded immediately to sentencing without
preparation of a presentence report.
12 UNITED STATES V. SHEHADEH
Shehadeh’s plea agreement included a waiver
surrendering his right to appeal the guilty plea, conviction
and the sentence imposed if the sentence did not exceed
thirty years. The district court reviewed that waiver with
Shehadeh at the plea colloquy, and he acknowledged he was
subject to that waiver. The waiver is enforceable because
“the language of the waiver encompasses [the defendant’s]
right to appeal on the grounds raised” and “the waiver was
knowingly and voluntarily made.” United States v. Joyce,
357 F.3d 921, 922 (9th Cir. 2004).
We note that this Court previously held defendants
cannot waive the preparation of a presentence report. United
States v. Turner, 905 F.2d 300, 301 (9th Cir. 1990).
However, that holding was predicated on “strict compliance”
with the Sentencing Guidelines, which were mandatory at
the time. Id. In light of the Supreme Court’s subsequent
holding in United States v. Booker, 543 U.S. 220 (2005), that
the Sentencing Guidelines are advisory, Turner’s holding
that a presentence report cannot be waived is no longer good
law. 4 Congress has not acted since Booker to prohibit waiver
of a presentence report. We will not prohibit that waiver
here, where the defendant knowingly waived his right to
preparation of a presentence report and asked to proceed to
sentencing as quickly as possible.
D
Shehadeh also raises an ineffective assistance of counsel
claim, arguing prior counsel did not file an appeal even
4
That even constitutional rights, such as the right to trial, are
waivable further counsels in favor of our holding that defendant may
waive preparation of a presentence report. See United States v. Olano,
507 U.S. 725, 733 (1993).
UNITED STATES V. SHEHADEH 13
though Shehadeh requested that he do so. “Claims of
ineffective assistance of counsel are generally inappropriate
on direct appeal” and should be raised in habeas corpus
proceedings to allow for development of the record. United
States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000). The record
here is not “sufficiently developed to permit review and
determination of the issue.” Id. Any ineffective assistance
of counsel claim Shehadeh may raise must be filed through
a habeas petition.
***
The judgment of the district court is AFFIRMED.