United States of America v. Rigoberto Ochoa Perez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RIGOBERTO OCHOA PEREZ,
Defendant-Appellant.
No. 22-50254
D.C. No.
2:22-cr-00086-SVW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted April 4, 2024**
Pasadena, California
Before: R. NELSON, VANDYKE, and SANCHEZ, Circuit Judges.
Defendant-Appellant Rigoberto Ochoa Perez appeals his 168-month
custodial sentence. We have jurisdiction under 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291. We affirm his custodial sentence.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
APR 8 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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On appeal, Perez contends his sentence is substantively unreasonable and
the district court committed procedural error while rendering it. The Government
argues that Perez’s appeal is barred by an appellate waiver provision in his plea
agreement. Perez responds that his appellate waiver is unenforceable because the
district court violated Rule 11 of the Federal Rules of Criminal Procedure and
thereby failed to ensure that he understood the appellate waiver provision before
accepting his guilty plea.
Because Perez failed to object to the alleged Rule 11 violation during the
plea colloquy, we review for plain error. United States v. Ma, 290 F.3d 1002, 1005
(9th Cir. 2002). A plain error “must be clear and obvious, ‘highly prejudicial’ and
must affect ‘substantial rights.’” Id. (citation omitted). To show that a Rule 11
violation affected his substantial rights, Perez must show a “‘reasonable
probability’ that, but for the Rule 11 error, ‘he would not have entered the [guilty]
plea.’” United States v. David, 36 F.4th 1214, 1217 (9th Cir. 2022) (citation
omitted).
Perez has not met that burden. To begin with, we conclude there was a
violation of Rule 11. “That Rule provides that the district court must address the
defendant ‘personally’ and determine that the defendant understands the terms of
any appellate waiver.” Id. at 1215 (citing Fed. R. Crim. P. 11(b)(1)(N)). The
district court did not personally address Perez about the appellate waiver or

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specifically determine that he understood the terms of the waiver. See id. at 1218-
19 (finding a violation of Rule 11(b)(1)(N) where the district court merely
acknowledged the existence of an appellate waiver but never personally addressed
the defendant about it). Perez has not shown, however, that the district court’s
violation of Rule 11 substantially affected his rights because “[n]othing in the
record supports a ‘reasonable probability’ that [Perez] would not have entered the
guilty plea had the district court separately addressed the appellate waiver as Rule
11 requires.” Id. at 1219 (citation omitted).
Our decision in United States v. David is controlling. See id. at 1215-19.
Like the defendant in that case, Perez does not contend that he did not understand
the terms of the appellate waiver provision before pleading guilty or otherwise
dispute that he entered into the plea agreement intelligently, freely, and voluntarily,
as he represented both orally at his plea colloquy and in writing. See id. at 1218.
Also as in David, Perez orally affirmed and acknowledged in writing that the plea
agreement was read to him (in Spanish) in its entirety, that he had discussed the
plea agreement with his attorney, and that he understood its terms. See id. We
accordingly conclude that the district court’s plea colloquy “at most constituted a
technical violation of Rule 11” as opposed to plain error that affected Perez’s
substantial rights. Id. at 1219. His appellate waiver is therefore enforceable and
forecloses this appeal.

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AFFIRMED.

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