Submitted En Banc September 26, 2018 [*] Pasadena, California
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
D. Valencia, Henderson, Nevada, for Defendant-Appellant.
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.
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,
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.
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.
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.
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.
BERZON, CIRCUIT JUDGE.
appeal is, as Yogi Berra did or did not say,
déjà vu all over again. 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
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.
recite the facts as pertinent to the issue addressed in this
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