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discussed
Cited as authority (rule)
United States v. Adam Livar
(2×)
also: Cited "see"
To the contrary, this court affirmed the conviction, concluding that “the government did not breach the plea agreement by not asking for a reduced sentence because the defendant breached it first by breaking the law.” Id. at 370.
discussed
Cited as authority (rule)
United States v. Travis Chelberg
See Hill, 474 U.S. at 61-62 , 106 S.Ct. 366 (White, J., concurring) (noting that there was “no factual basis for suggesting that attorney’s *539 advice was incompetent” where there was no evidence that the petitioner conveyed a critical fact to the attorney); United States v. Roberts, 5 F.3d 365, 371-72 (9th Cir. 1993) (holding that counsel’s advice was objectively reasonable where there was no evidence that the alleged inaccuracies in the PSR actually existed). 4 III.
discussed
Cited as authority (rule)
United States v. Travis Chelberg
We need not address this issue because, as explained in the text, above, the premise of Chelberg’s argument fails. -5- Hill, 474 U.S. at 61-62 (White, J., concurring) (noting that there was “no factual basis for suggesting that attorney’s advice was incompetent” where there was no evidence that the petitioner conveyed a critical fact to the attorney); United States v. Roberts, 5 F.3d 365, 371-72 (9th Cir. 1993) (holding that counsel’s advice was objectively reasonable where there was no evidence that the alleged inaccuracies in the PSR actually existed).4 III.
discussed
Cited as authority (rule)
United States v. Harris
Cf. United States v. Barrios-Gutiemz, 218 F.3d 1118 (9th Cir.2000), superseded on reconsideration en banc by 255 F.3d 1024 (9th Cir.2001) (court never actually stated the maximum sentence); United States v. Jaramillo-Suarez, 857 F.2d 1368, 1372-73 (9th Cir.1988) (court failed to mention any maximum penalty); United States v. Roberts, 5 F.3d 365, 369 (9th Cir.1993) (court failed to state the maximum possible term of supervised release); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir.1986) (court failed to state the mandatory parole term).
discussed
Cited as authority (rule)
United States v. Harris
Cf. United States v. Barrios-Gutiemz, 218 F.3d 1118 (9th Cir.2000), superseded on reconsideration en banc by 255 F.3d 1024 (9th Cir.2001) (court never actually stated the maximum sentence); United States v. Jaramillo-Suarez, 857 F.2d 1368, 1372-73 (9th Cir.1988) (court failed to mention any maximum penalty); United States v. Roberts, 5 F.3d 365, 369 (9th Cir.1993) (court failed to state the maximum possible term of supervised release); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir.1986) (court failed to state the mandatory parole term).
discussed
Cited as authority (rule)
State v. Groppi
Ed. 2d 148 (2002); see also In re Jason C., 255 Conn. 565, 571-75 , 767 A.2d 710 (2001) (conducting full and complete review); State v. Andrews, 253 Conn. 497, 502-14 , 752 A.2d 49 (2000) (same); United States v. Good, 25 F.3d 218, 219 (4th Cir. 1994) (de novo review); United States v. Roberts, 5 F.3d 365, 368 (9th Cir. 1993) (same).
discussed
Cited as authority (rule)
United States v. Gonzalez-Rodriguez
(2×)
also: Cited "see"
Gonzalez-Rodriguez also appears to claim that, if the district court had applied the 1998 Guidelines, there would have been a Fifth Amendment violation because "the 199[8] version [of the Guidelines] did not provide for punishment based on a quantity of pseu-doephedrine unless the defendant was charged under 21 U.S.C. § 841 (d).” [Appellant's Opening Brief ("AOB”) 10] His claim is foreclosed by this court’s decision in United States v. Roberts, 5 F.3d 365, 372 (9th Cir.1993). . § 1B1.3, cmt. n. 2 states, "With respect to offenses involving ... controlled substances[,] the defendant is …
discussed
Cited as authority (rule)
United States v. Chandler
United States v. Roberts, 5 F.3d 365, 368-70 (9th Cir.1993). 1 We remand and instruct the district court to either reimpose the sentences with three-year terms of supervised release or allow the defendants to replead.
discussed
Cited as authority (rule)
United States v. Fabian Barrios-Gutierrez
(2×)
We have previously held that Rule 11 "mandates that the judge tell the defendant the maximum possible penalty." United States v. Roberts, 5 F.3d 365, 369 (9th Cir. 1993) (internal quotations omitted).
cited
Cited as authority (rule)
United States v. Cruz-Burgos
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993).
cited
Cited as authority (rule)
United States v. Hinton
See USSG § 2D1.1 Application Note 12; United States v. Basinger, 60 F.3d 1400, 1409 (9th Cir.1995); United States v.. Roberts, 5 F.3d 365, 372 (9th Cir.1993).
discussed
Cited as authority (rule)
United States v. Fabian Barrios-Gutierrez
(2×)
In United States v. Roberts, 5 F.3d 365, 369 (9th Cir. 1993), we held that "Rule 11 still mandates that the judge tell the defendant the `maximum possible penalty.' The defendant should not receive a sentence longer than the one discussed at the plea hearing." In that case, the judge failed to mention the possibility of a term of supervised release when accepting the plea.Similarly, in Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), we held that failure to inform the accused of a mandatory parole term prevented the guilty plea from being voluntary and intelligent.
discussed
Cited as authority (rule)
United States v. Thorne
See, e.g., Padilla, 23 F.3d at 1223 (substantial rights violated when defendant receives longer sentence than maximum court advised him he could receive during Rule 11 hearing); United States v. Roberts, 5 F.3d 365, 369 (9th Cir. 1993) (same); United States v. Syal, 963 F.2d 900, 906 (6th Cir. 1992) (same).
discussed
Cited as authority (rule)
United States v. Linwood Douglas Thorne
See, e.g., Padilla, 23 F.3d at 1223 (substantial rights violated when defendant receives longer sentence than maximum court advised him he could receive during Rule 11 hearing); United States v. Roberts, 5 F.3d 365, 369 (9th Cir.1993) (same); United States v. Syal, 963 F.2d 900, 906 (6th Cir.1992) (same).
discussed
Cited as authority (rule)
United States v. Stephen Douglas Lewis
We review de novo, United States v. Alber, 56 F.3d 1106, 1109 (9th Cir1995), United States v. Roberts, 5 F.3d 365, 370 (9th Cir.1993). 4 Lewis agreed at the plea hearing that he jumped over the counter and demanded, "Give me all the money." This satisfies the force, violence or intimidation element of § 2113(a).
discussed
Cited as authority (rule)
United States v. Mario Ernesto Villabona-Alvarado
Camper v. United States, 66 F.3d 229, 231 (9th Cir.1995); United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995); United States v. Roberts, 5 F.3d 365, 371 (9th Cir.1993). 7 Villabona argues that the criminal activity did not involve the requisite five or more participants under § 3B1.1(a), and that the government and the district court did not identify the five persons.
discussed
Cited as authority (rule)
United States v. Ramon Duron, III
II. 6 To prevail on his ineffective assistance of counsel claim, Duron must show that his counsel's advice was not "within the range of competence demanded of attorneys in criminal cases," Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v. Richardson, 397 U.S. 759 (1970))., and that he suffered prejudice because there was a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59 ; United States v. Roberts, 5 F.3d 365, 370 (9th Cir.1993). 7 In this case, counsel simply erred in her sentenci…
examined
Cited as authority (rule)
UNITED STATES of America, Plaintiff-Appellee, v. Rafael Salgado AVILA, Defendant-Appellant
(3×)
See Ponce, 51 F.3d at 827 ; United States v. Roberts, 5 F.3d 365, 371 (9th Cir.1993); Barnes, 993 F.2d at 685 ; United States v. Mullins, 992 F.2d 1472, 1479 (9th Cir.), cert. denied, 510 U.S. 994 , 114 S.Ct. 556 , 126 L.Ed.2d 457 (1993); United States v. Avila, 905 F.2d 295, 298-99 (9th Cir.1990).
discussed
Cited as authority (rule)
United States v. Leonard Cooper and Tanya Cooper, United States of America v. A.C. Allen
This basis for enhancement was recognized in United States v. Mullins, 992 F.2d 1472, 1479 (9th Cir.1993) (upholding four-level increase for role in offense because defendant recruited accomplices for a scheme that had at least three participants and used the services of many outsiders); and United States v. Roberts, 5 F.3d 365, 371 (9th Cir.1993) (fraud involving only 3 participants but using the unknowing services of many outsiders could be considered extensive). 21 Second, we have held that when separate enhancements address sufficiently different concerns, applying both does not constitute…
discussed
Cited as authority (rule)
United States v. Alejandro Ordonez
(2×)
also: Cited "see"
United States v. Roberts, 5 F.3d 365, 371 (9th Cir.1993).
cited
Cited as authority (rule)
United States v. Geoffrey David Hill
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993).
discussed
Cited as authority (rule)
United States v. Oucho Saelee
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993). 4 * Saelee argues that the forfeiture of his vehicle pursuant to 18 U.S.C. § 981 and the imposition of his sentence subjected him to double punishment in violation of the Double Jeopardy Clause.
cited
Cited as authority (rule)
United States v. Jay Kevin Sheridan
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993).
cited
Cited as authority (rule)
United States v. Hector Mendoza-Oseguera
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993).
cited
Cited as authority (rule)
UNITED STATES of America, Plaintiff-Appellee, v. George Paul SALEMO, Defendant-Appellant
United States v. Roberts, 5 F.3d 365, 370 (9th Cir.1993).
discussed
Cited as authority (rule)
United States v. Alexander Hampton
(2×)
also: Cited "see"
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993); see Fed.R.Crim.P. 11(c)(1). 7 Hampton does not claim that he did not understand the charges against him.
discussed
Cited as authority (rule)
United States v. Ignacio Monroy-Salazar
We have previously held that enhancement is proper where: (1) the defendant oversaw the procurement and distribution of quantities of cocaine and managed two others, United States v. Ponce, 51 F.3d 820, 827 (9th Cir.1995); (2) the defendant directed his employee to deliver the chemicals and the defendant stood to profit the most from the transaction, United States v. Roberts, 5 F.3d 365, 371 (9th Cir.1993); and (3) the defendant was the source of the cocaine and a codefendant was managing the transaction with him.
discussed
Cited as authority (rule)
United States v. Kevin Daniel Millican
(2×)
also: Cited "see"
United States v. Roberts, 5 F.3d 365, 368 (9th Cir. 1993).
cited
Cited as authority (rule)
UNITED STATES of America, Plaintiff-Appellee, v. Richard Edward STEARNS, Defendant-Appellant
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993).
discussed
Cited as authority (rule)
United States v. Mark William Ames
Sec. 2255 petition de novo and findings of fact for clear error, United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993), and we affirm for the reasons stated in the district court's order, filed on January 24, 1995.
discussed
Cited as authority (rule)
United States v. Adekunle Ola Fasola
We review the district court's factual findings for clear error and its conclusions of law de novo, see United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993), and affirm for the reasons stated by the district court. 1 3 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument.
discussed
Cited as authority (rule)
United States v. Derrick Bines, Kenneth Ray Johnson, and Arnold Martin
(2×)
also: Cited "see"
Because the district court awarded Bines a three-point departure for his cooperation, mooting the defendant's request for specific performance of the agreement, we affirm. 57 "Whether a plea agreement has been violated is a question of fact for district court and is reviewed for clear error." United States v. Roberts, 5 F.3d 365, 370 (9th Cir. 1993) (citing United States v. Sutton, 794 F.2d 1415, 1423 (9th Cir. 1986)).
cited
Cited as authority (rule)
United States v. Gilberto Silvas-Norzagaray
"A defendant's role in a conspiracy is a question of fact reviewed for clear error." United States v. Roberts, 5 F.3d 365, 371 (9th Cir.1993).
cited
Cited as authority (rule)
Michael Dale Hodges v. United States
United States v. Roberts, 5 F.3d 365, 368 (9th Cir. 1993).
discussed
Cited as authority (rule)
United States v. Joseph D. Pinella
(2×)
Cf. United States v. Roberts, 5 F.3d 365, 369 (9th Cir. 1993) (Rule 11(c) violated when district court failed to mention supervised release before accepting guilty plea).
discussed
Cited as authority (rule)
United States v. Michael Podmenik
United States v. Roberts, 5 F.3d 365, 368 (9th Cir. 1993). 4 In his Sec. 2255 motion, Podmenik claimed that he received ineffective assistance of counsel during plea negotiations, which resulted in the imposition of a longer sentence.
examined
Cited as authority (rule)
United States v. Ronald A. Williams
(6×)
also: Cited "see"
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993).
discussed
Cited as authority (rule)
Phyllis McClendon v. United States
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993); Warner v. United States, 975 F.2d 1207, 1212 (6th Cir.1992), cert. denied, 113 S.Ct. 1314 (1993). 9 The district court properly denied McClendon's Sec. 2255 motion because trial counsel rendered effective assistance.
discussed
Cited as authority (rule)
United States v. Tony Kean
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993); Warner v. United States, 975 F.2d 1207, 1212 (6th Cir.1992), cert. denied, 113 S.Ct. 1314 (1993). 6 This motion was properly denied because it clearly constitutes an abuse of the writ.
cited
Cited as authority (rule)
United States v. Ramon Dario Torres-Angulo, A/K/A Nicolas Ramirez
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993). 4 A district court "may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason." Fed.R.Crim.P. 32(d).
cited
Cited as authority (rule)
Javier Hincapie Sanchez v. United States
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993).
discussed
Cited as authority (rule)
Gary A. Kubicki v. United States
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993); Warner v. United States, 975 F.2d 1207, 1212 (6th Cir.1992), cert. denied, 113 S.Ct. 1314 (1993). 4 The district court properly rejected Kubicki's first claim.
discussed
Cited as authority (rule)
Lawrence Watson v. United States
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993); Warner v. United States, 975 F.2d 1207, 1212 (6th Cir.1992), cert. denied, 113 S.Ct. 1314 (1993). 6 Initially, we note that Watson's first and fourth claims were properly denied because they were reviewed for plain error and rejected in his direct appeal.
discussed
Cited as authority (rule)
Tyrone Tanks v. United States
United States v. Roberts, 5 F.3d 365, 368 (9th Cir. 1993); Warner v. United States, 975 F.2d 1207, 1212 (6th Cir. 1992), cert. denied, 113 S. Ct. 1314 (1993). 6 Tanks's first claim challenging the district court's failure to give a limiting instruction to the jury regarding a taped phone conversation (Exhibit 41) is not even reviewable in this proceeding.
discussed
Cited as authority (rule)
Syed Hassan Ahmed v. United States
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993); Warner v. United States, 975 F.2d 1207, 1212 (6th Cir.1992), cert. denied, 113 S.Ct. 1314 (1993). 5 Ahmed's claim challenging the calculation of his sentence is not even cognizable in this collateral proceeding as it could have been but was not raised on direct appeal.
cited
Cited as authority (rule)
United States v. Guadalupe Amador Alaffa
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993).
discussed
Cited as authority (rule)
Chris Christoff v. United States
Sec. 2255 motion, and for clear error any underlying factual findings, United States v. Roberts 5 F.3d 365, 368 (9th Cir.1993), and we affirm. 3 * Rule 11 Compliance 4 Christoff claims that the district court violated Fed.R.Crim.P. 11(c)(1) by failing to inform him when he pleaded guilty of the nature of his crime and of the minimum potential sentence.
discussed
Cited as authority (rule)
United States v. Lawrence Doby Wilson
Sec. 2255 motion, United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993), and we affirm. 3 A claim of legal error, as opposed to a claim of jurisdictional or constitutional error, is not cognizable in a 28 U.S.C.
discussed
Cited as authority (rule)
United States v. Narinder Pal Singh Mahal
Whether a guilty plea is voluntary is reviewed de novo, United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993), as is whether Mahal was denied effective counsel, id. at 370 . 5 The district court can allow a defendant to withdraw a guilty plea for any "fair and just reason." Fed.R.Crim.P. 32(d); United States v. Zweber, 913 F.2d 705, 710 (9th Cir.1990).
discussed
Cited as authority (rule)
Herbert Bruce Spencer v. United States
United States v. Roberts, 5 F.3d 365, 368 (9th Cir.1993); Warner v. United States, 975 F.2d 1207, 1212 (6th Cir.1992), cert. denied, 113 S.Ct. 1314 (1993). 6 The district court properly denied Spencer's first and second claims because Spencer unsuccessfully challenged the sufficiency of the indictment on direct appeal.
Retrieving the full opinion text from the archive…
William McKINNEY, Plaintiff-Appellant,
v.
Pat ANDERSON; Carol Ployer; H.L. Whitley; George W. Sumner; John Nye, Defendants-Appellees
v.
Pat ANDERSON; Carol Ployer; H.L. Whitley; George W. Sumner; John Nye, Defendants-Appellees
89-16589.
Court of Appeals for the Ninth Circuit.
Sep 16, 1993.
Browning, Pregerson, Trott.
Published
The United States Supreme Court has affirmed the judgment of this court published at 959 F.2d 853. The case is remanded to the district court for further proceedings consistent with the decision of the Supreme Court in Helling, et al. v. McKinney, — U.S. —, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993).