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United States v. Plascencia-Orozco

United States Court of Appeals, Ninth Circuit

March 29, 2017

United States Of America, Plaintiff-Appellee,
v.
Ramiro Plascencia-Orozco, AKA Alberto Jose Del Muro, AKA Alberto Jose Muro-Guerrero, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
RAMIRO PLASCENCIA-OROZCO, Defendant-Appellant.

          Argued and Submitted December 8, 2016 Pasadena, California

         Appeal from the United States District Court for the Southern District of California D.C. Nos. 3:11-cr-03627-JAH-1, 3:08-cr-00139-BEN-1 John A. Houston, District Judge, Presiding, T. Benitez, District Judge, Presiding

          Robert L. Swain (argued), San Diego, California, for Defendant-Appellant.

          Daniel E. Zipp (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; United States Attorney's Office, San Diego; California, for Plaintiff-Appellee.

          Before: Consuelo M. Callahan, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel affirmed the defendant's conviction and sentence for aggravated identity theft and attempted illegal reentry, and vacated the district court's order directing the defendant to use his true legal name.

         The panel held that the district court did not abuse its discretion by denying the defendant's request for a fourth attorney.

         The panel held that the district court did not abuse its discretion by ruling that the defendant breached the terms of his 2008 plea agreement when he attempted to reenter the United States unlawfully in 2011. The panel held that the district court, which ruled on the breach at a motions-in-limine hearing, did not abuse its discretion by refusing to submit the issue of a breach to a jury or by allowing the government to reindict the defendant on the 2008 charges without first seeking a judicial finding of breach. The panel explained that the proper way for a defendant to raise a prior plea agreement as a defense to a criminal charge is to move to dismiss that charge under Federal Rule of Criminal Procedure 12(b). The panel held that the district court did not err by failing to hold an evidentiary hearing sua sponte.

         The panel held that the district court did not commit errors that cumulatively rendered the defendant's trial fundamentally unfair. The panel held that the district court did not abuse its discretion by admitting a Mexican birth certificate that the government claimed belonged to the defendant, that the district court did not err by failing to hold a hearing on potential jury bias, that the district court did not abuse its discretion by allowing the government to elicit testimony about testimony in unrelated prior proceedings, and that the district court did not plainly err by allowing the government to question the defendant about a witness's credibility.

         The panel held that the district court did not abuse its discretion by sentencing the defendant to 184 months' imprisonment.

         The panel agreed with the parties that the district court lacked the authority to issue a freestanding order directing the defendant to use his true legal name.

          OPINION

          BEA, Circuit Judge

         We seldom run into a "frequent flyer" as "frequent" as appellant. Over his 46-year career as an illegal entrant, he has been deported or removed dozens of times. But what makes him stand out as a "cara dura"[1] is not only that on some of these entries, he used the name and stolen documents of an innocent father of five, but that he now testifies before the wife and mother that he actually fathered two of the innocent's children. Despite the numerous grounds he now urges on appeal, we affirm.

         I. Background

         The appellant, Ramiro Plascencia-Orozco ("Plascencia"), [2] is a citizen and national of Mexico. He was first removed from the United States by immigration authorities in 1971, after he was arrested for entering the country without inspection or authorization. Between 1971 and 2011, Plascencia was similarly removed from the United States at least twenty more times and was convicted of at least eleven separate immigration offenses. In 1986 or 1987, Plascencia stole identification documents, including a birth certificate, from a United States citizen named Alberto Jose Del Muro Guerrero. Plascencia attempted to enter the United States using Del Muro's birth certificate on several occasions, including in January 2008 and August 2011. Plascencia's 2008 and 2011 entry attempts are the subject of this appeal.

         A. Plascencia's 2008 Entry Attempt

         In January 2008, Plascencia attempted to enter the United States at the Calexico Port of Entry in California. When asked for identification, Plascencia presented Del Muro's birth certificate. U.S. Customs and Border Protection officers then searched Plascencia's car and found over one hundred kilograms of marijuana hidden inside. Plascencia was arrested and charged with (1) importation of marijuana into the United States, 21 U.S.C. §§ 952, 960; (2) possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1); (3) attempted illegal reentry, 8 U.S.C. § 1326; and (4) aggravated identity theft, 18 U.S.C. § 1028A.

         Plascencia pleaded guilty to the importation-of-marijuana charge, and in exchange, the government dismissed the remaining charges against him and promised "not [to] prosecute [Plascencia] thereafter on such dismissed charges unless [he] breaches the plea agreement . . . or [he] unlawfully returns to the United States during the term of supervised release." Plascencia was sentenced to 46 months' imprisonment and three years' supervised release. In June 2011, when he finished serving his prison sentence, Plascencia was removed from the United States by immigration authorities and prohibited from "being in the United States . . . at any time."

         B. Plascencia's 2011 Entry Attempt

         In August 2011, less than two months after his removal, Plascencia again attempted to enter the United States using Del Muro's birth certificate. This time, Plascencia presented himself at the San Ysidro Port of Entry in California. An immigration officer ran a computer search on Del Muro's birth certificate and learned that its owner had been "permanently banned" from the United States. Plascencia was taken into custody and later indicted on four charges: two counts of aggravated identity theft, 18 U.S.C. § 1028A, and two counts of attempted illegal reentry, 8 U.S.C. § 1326. One set of identity-theft and illegal-reentry charges arose out of Plascencia's August 2011 entry attempt; the other was revived from his 2008 entry attempt on the theory that Plascencia had breached his plea agreement by "unlawfully return[ing] to the United States" in 2011.

         Plascencia's trial was held in August 2014 before Judge John Houston of the U.S. District Court for the Southern District of California. The government put on testimony from Alberto Del Muro, Del Muro's wife, Matilde, and multiple law enforcement officers, including the officers who stopped Plascencia as he was attempting to enter the United States in 2008 and 2011. Plascencia testified in his own defense but called no other witnesses. The jury returned a verdict of guilty on all counts, and the court sentenced Plascencia to 184 months' imprisonment followed by three years' supervised release. Plascencia timely filed this appeal, in which he alleges errors in his pretrial proceedings, trial, and sentencing.[3]

         II. Standard of Review

         A district court's denial of a criminal defendant's request for a new attorney is reviewed for abuse of discretion. United States v. Lindsey, 634 F.3d 541, 554 (9th Cir. 2011). So are a district court's evidentiary rulings, see United States v. Lozano, 623 F.3d 1055, 1059 (9th Cir. 2010); its decision whether to conduct an evidentiary hearing on potential juror bias, Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008); and the sentence that it imposes, Gall v. United States, 552 U.S. 38, 52 (2007).

         Ninth Circuit case law is less clear as to the standard of review that applies to a district court's interpretation of a plea agreement. See United States v. Transfiguracion, 442 F.3d 1222, 1227 (9th Cir. 2006). Some authority maintains that "[t]he district court's interpretation and construction of a plea agreement is reviewed for clear error." United States v. Clark, 218 F.3d 1092, 1095 (9th Cir. 2000); see also United States v. Floyd, 1 F.3d 867, 869 (9th Cir. 1993). Other authority maintains that "[w]e review a district court's interpretation of the terms of a plea agreement de novo, " but "[w]e consider whether the facts demonstrate that there was a breach of a plea agreement under the more deferential clearly erroneous standard of review." United States v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996). We need not resolve this conflict here, however, because we agree with the district court's interpretation of the plea agreement "[e]ven under the less deferential de novo standard of review." Transfiguracion, 442 F.3d at 1227; see also United States v. Franco-Lopez, 312 F.3d 984, 988 (9th Cir. 2002).

         Even if a district court rules erroneously at a criminal defendant's trial, that error does not necessarily warrant reversal on appeal. If the defendant objects to the erroneous ruling, this Court reviews for "harmless error." Fed. R. Crim. P. 52(a). An error is harmless if it "does not affect substantial rights." Id. "An error affects 'substantial rights' if the defendant is prejudiced in such a manner as to 'affect the outcome of the district court proceedings.'" United States v. Mitchell, 568 F.3d 1147, 1150 (9th Cir. 2009) (internal alterations omitted) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).

         By contrast, where the defendant fails to object to a district court's erroneous ruling, that ruling is reviewed for "plain error." Fed. R. Crim. P. 52(b). Plain error exists only if "(1) there was error; (2) the error committed was plain; (3) the error affected substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings." United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (2011). On plain error review, "[i]t is the defendant rather than the [g]overnment who bears the burden of persuasion with respect to prejudice." Olano, 507 U.S. at 734.

         III. Discussion

         A. The District Court Did Not Abuse Its Discretion by Denying Plascencia's Third Request for New Counsel.

         Initially, the district court appointed Leila Morgan of the Federal Defenders of San Diego, Inc., as Plascencia's attorney. Morgan requested a competency hearing for Plascencia. At that hearing, she told the court during a sidebar that "[Plascencia] has a substantial delusion that he is an individual [Del Muro] who the government believes he is not." As a result, Morgan explained, Plascencia could not "effectively communicate [with her] and help [her] with his defense." After the sidebar, Plascencia asked the court to appoint a new attorney, claiming that Morgan was "ineffective" and that "there [was] a conflict of interest." The court deferred its decision on Plascencia's request until the results of Plascencia's competency evaluation were available. In August 2012, while awaiting his competency hearing, Plascencia filed a complaint against Morgan with the California Bar Association, and the district court granted Morgan's request to withdraw from the representation.[4]

         The district court then appointed a second attorney, Merle Schneidewind. At a December 2012 status hearing, Schneidewind told the court that Plascencia had filed a state bar complaint against him as well. Plascencia did so after Schneidewind had refused Plascencia's demands for money, which Schneidewind characterized as "basically extortion." Plascencia then told the district court he wanted a new attorney. The court initially denied Plascencia's request, but in April 2013, Schneidewind told the court that the California Bar Association had informed him that "although [he was] not required to recuse [himself]" from the case, doing so was likely "the more prudent course of action." The court agreed and appointed Plascencia a third attorney, Robert Carriedo.

         Plascencia filed state bar complaints against Carriedo as well, and on August 13, 2014, he again asked the court to appoint him a new lawyer.[5] The court asked Plascencia why he wanted new counsel, and he told the court that Carriedo had failed to procure transcripts from prior proceedings in which immigration authorities had purportedly determined that Plascencia was in fact a United States citizen. Carriedo explained that he had gathered all the documents from the relevant proceedings, but that none of them demonstrated that Plascencia was a United States citizen. Plascencia also complained that Carriedo had failed to procure certain witnesses who knew Plascencia "about 20 years ago." According to Carriedo, those witnesses either were dead, could not be found, or were in Mexico and unwilling to testify. The court denied Plascencia's request to replace Carriedo at the August 13 hearing. Plascencia renewed his request on August 19, the day his trial was scheduled to begin, and again on August 20, the day the first witness was scheduled to take the stand. The court denied his request both times.

         A district court's denial of a criminal defendant's request for a new attorney is reviewed for abuse of discretion. Lindsey, 634 F.3d at 554. This Court considers three factors when determining whether a district court abused its discretion: "1) the timeliness of the motion; 2) the adequacy of the district court's inquiry into the defendant's complaint; and 3) whether the asserted conflict was so great as to result in a complete breakdown in communication and a consequent inability to present a defense." United States v. Prime, 431 F.3d 1147, 1154 (9th Cir. 2004).

         Here, all three factors support the district court's ruling. Plascencia requested a replacement for Carriedo on August 13 (six days before trial was scheduled to begin), August 19 (the day the court empaneled a jury), and August 20 (the day the first witnesses were heard). Thus, none of his three requests were timely. Cf. Prime, 431 F.3d at 1155 (request made ten days before trial untimely); United States v. Garcia, 924 F.2d 925, 926 (9th Cir. 1991) (request made six days before trial untimely). The district court repeatedly inquired into Plascencia's reasons for wanting a new attorney, and determined that those reasons were unfounded.[6] Instead, the court found, Carriedo had engaged in "competent efforts to . . . represent [Plascencia, ]" despite Plascencia's "efforts to stonewall [Carriedo's] efforts with frivolous complaints." Moreover, although Plascencia's attorneys told the court that communicating with Plascencia was difficult, there was not a "complete breakdown and a consequent inability to present a defense, " because Plascencia ultimately testified in his own defense. For these reasons, and because the record supports the district court's finding that Plascencia's requests were dilatory tactics rather than genuine complaints about his attorneys' performance, we conclude that the district court did not abuse its discretion by denying Plascencia's request for a fourth attorney.

         B. The District Court Did Not Abuse Its Discretion by Ruling that Plascencia Had Breached the Terms of His Plea Agreement.

         Plascencia's 2008 plea agreement provided that the government would "not prosecute" Plascencia on the illegal-reentry, identity-theft, and possession-of-marijuana charges arising out of his 2008 entry attempt unless Plascencia "breach[ed] the plea agreement" or "unlawfully return[ed] to the United States during the term of supervised release." In the event of a breach, the agreement provided, "the [g]overment may pursue any charges including those that were dismissed, promised to be dismissed, or not filed as a result of this agreement."

         In August 2014, at a pretrial hearing on the parties' motions in limine, the government asked the district court to rule that Plascencia had breached the terms of his 2008 plea agreement by attempting to reenter the United States unlawfully in 2011. To reinstate the charges, the government argued, it needed to prove only that Plascencia had breached the agreement by a "preponderance of the evidence." The government contended that the grand jury's "finding that there is probable cause to believe that [Plascencia unlawfully reentered the United States in August 2011]" was sufficient to support such a finding.[7]

         Plascencia argued that the issue of breach should be submitted to the jury, because the conduct giving rise to the claimed breach-Plascencia's 2008 entry attempt-was the same conduct underlying the reinstated illegal-reentry charge. The district court rejected this argument, holding instead that whether Plascencia had breached his plea agreement was "a legal issue for [the] court to decide." The court found that "there [was] evidence presented to a preponderance of the evidence" that Plascencia had breached the ...


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