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United States v. Depue

United States Court of Appeals, Ninth Circuit

January 14, 2019

United States of America, Plaintiff-Appellee,
v.
Brett Depue, Defendant-Appellant.

          Submitted En Banc September 26, 2018 [*] Pasadena, California

          Appeal from the United States District Court D.C. No. 2:10-cr-00121-RLH-RJJ-1 for the District of Nevada Roger L. Hunt, Senior District Judge, Presiding

          Mario D. Valencia, Henderson, Nevada, for Defendant-Appellant.

          Adam Flake, Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Steven W. Myhre, Acting United States Attorney; United States Attorney's Office, Las Vegas, Nevada; for Plaintiff-Appellee.

          Vincent J. Brunkow and Michael A. Marks, Federal Defenders of San Diego Inc., San Diego, California, for Amici Curiae Ninth Circuit Federal Public and Community Defenders.

          Lee H. Rubin and Donald M. Falk, Mayer Brown LLP, Palo Alto, California, for Amicus Curiae National Association of Criminal Defense Lawyers.

          Before: Sidney R. Thomas, Chief Judge, and William A. Fletcher, Richard A. Paez, Marsha S. Berzon, Milan D. Smith, Jr., Sandra S. Ikuta, Morgan Christen, Jacqueline H. Nguyen, Paul J. Watford, Andrew D. Hurwitz and Michelle T. Friedland, Circuit Judges.

         SUMMARY[**]

         Criminal Law

         Affirming a conviction and sentence, the en banc court reaffirmed the distinction between waiver and forfeiture of sentencing challenges: a defendant waives his rights and precludes plain error review only when there is evidence that he knew of his rights at the time and nonetheless relinquished them.

         Affirming the conviction, the en banc court adopted the three-judge panel's decision that the district court did not abuse its discretion when it dismissed a juror who complained of health problems during deliberations.

         The en banc court held that the defendant forfeited- rather than waived-his challenge to the Sentencing Guidelines calculation because nothing in the district court record suggests that the defendant considered objecting to the calculation method or to any of the alleged factual inaccuracies he now raises. The en banc court explained that the fact the defendant knew generally that he could object if he recognized a mistake, or that he recognized and raised other errors, does not mean that he waived the right to challenge the specific alleged errors he raises on appeal.

         Because the defendant forfeited rather than waived his challenge to the district court's Guidelines calculation, the en banc court evaluated whether the calculation was plain error affecting substantial rights. The en banc court held that regardless of whether the district court's loss calculation method was legally erroneous, the defendant has not met his burden to show that the alleged error affected his substantial rights. As to the defendant's factual disputes underlying the Guidelines calculation, the en banc court was not convinced that the district court's factual errors, if any, were so egregious as to be plainly erroneous.

          OPINION

          BERZON, CIRCUIT JUDGE.

         This appeal is, as Yogi Berra did or did not say, déjà vu all over again.[1] We are asked to explain when a defendant is entitled to plain error review of challenges to his sentence that he failed to raise in the district court. Our cases have consistently held that a defendant waives his rights and precludes plain error review only when there is evidence that he knew of his rights at the time and nonetheless relinquished them. Twenty-one years ago, we explained this point in an en banc opinion. United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc). We reaffirm today this distinction between waiver and forfeiture.

         Depue challenges (1) the dismissal of a juror who complained of health problems during deliberations, and (2) the district court's sentencing range calculations under the United States Sentencing Guidelines ("Guidelines"). We adopt the three-judge panel's decision that the district court did not abuse its discretion when it dismissed the juror, as well as the panel's reasoning on that issue. See United States v. Depue, 879 F.3d 1021, 1027-28 (9th Cir. 2018). Confining our en banc consideration to Depue's challenge to the Guidelines calculations, we hold that Depue's failure to object to the Guidelines calculations at sentencing constitutes forfeiture subject to plain error review, but that there was no plain error.

         I

         We recite the facts as pertinent to the issue addressed in this opinion.

         From February 2005 to May 2007, Brett Depue ("Depue") conspired to orchestrate a large-scale mortgage fraud scheme. The conspiracy involved recruiting individuals with high credit scores to act as straw buyers of residential properties in Nevada. The straw buyers allowed Depue to use their names and good credit to buy properties with 100% financing. In exchange, they received approximately $5, 000 for each property purchased in their name and the expectation of a good return on their "investment" in the property. To secure the financing, Depue and his co-conspirators prepared mortgage loan applications ...


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