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United States of America v. David Rivera

June 22, 2012


Appeal from the United States District Court for the Central District of California Otis D. Wright, District Judge, Presiding D.C. No. 2:08-cr-01201- ODW-50

The opinion of the court was delivered by: Berzon, Circuit Judge:



Argued and Submitted August 2, 2011-Pasadena, California

Before: Stephen Reinhardt and Marsha S. Berzon, Circuit Judges, and Matthew F. Kennelly, District Judge.*fn1

Opinion by Judge Berzon


Defendant-Appellant David Rivera was convicted of possessing with intent to distribute 214.4 grams of actual methamphetamine. Defense counsel indicated that Rivera wanted his family members, including his wife and young son, present at the sentencing hearing. The district court, however, expressing displeasure at what it perceived as the manipulative use of Rivera's young son as a sentencing "prop," continued the sentencing hearing and ordered defense counsel to show up three days later with "[j]ust the people involved." We hold that Rivera's Sixth Amendment right to a public trial was violated by the district court's exclusion of his family members from the sentencing proceedings. Accordingly, we vacate Rivera's sentence and remand for re-sentencing.


Rivera was named in an eighty-six count indictment against seventy-nine members and associates of the Mongols motorcycle gang. The indictment charged racketeering, narcotics, weapons, and money-laundering offenses. Count Fifty-Three of the indictment charged Rivera and his brother, Ismael Rivera, with possessing with intent to distribute 214.4 grams of methamphetamine.

Pursuant to a written plea agreement, Rivera pleaded guilty to the act of transporting 214.4 grams of methamphetamine. The parties stipulated to a base offense level of thirty-four and a three-level reduction for Rivera's acceptance of responsibility. Both parties reserved the right to argue that the district court should adjust or depart from this offense level. The plea agreement contained a limited waiver of appeal, which stated in pertinent part:

Defendant gives up the right to appeal any sentence imposed by the Court, and the manner in which the sentence is determined, provided that (a) the sentence is within the statutory maximum specified above and is constitutional, and (b) the Court imposes a sentence within or below the range corresponding to a total offense level of 31, and the applicable criminal history category as determined by the Court.

At the change of plea hearing, Rivera testified that he read, signed, and understood the plea agreement.

On August 24, 2010, before conducting the initial sentencing hearing, the district judge announced that he intended to comply with the parties' requests to have their sentencing position papers filed under seal and also intended to seal the courtroom and the transcripts of the proceeding. Rivera, through counsel, requested that his family members, including his seven-year-old son, be present, but asked to discuss certain matters at sidebar. The district judge responded that he himself thought the hearing ought to be closed, but that Rivera could do as he wished.

The hearing went forward, and defense counsel presented the reasons why, in his view, the level thirty-one Guidelines sentence was too high. Rivera, his lawyer maintained, was entitled to a minimal role reduction because he was substantially less culpable than his co-defendants; a lower sentence was appropriate because Rivera had a low IQ and was thus "subject to undue influence" by his older brother; and leniency was appropriate in light of Rivera's family ties and post-arrest conduct. After concluding his litany of rationales for a lowered sentence, defense counsel pleaded with the court to "look at this individual and give him a chance for his future . . . ."

The district judge responded:

A number of courts have taken a chance on him. There has been repeated arrests and grants of probation, and he is undeterred. He immediately goes out and continues to engage in criminal activity. And that is the part that is really troublesome. Continues to engage in this lifestyle, get arrested, brought before the Court, admit the guilt, is granted probation, goes back out and does it again because nothing has ever happened. Nothing has ever happened to Mr. Rivera to encourage him to change his life.

And I will have to tell you something, and this is almost universal with all of the people involved in this case, they spend all of their time, you know, out in the streets engaged in an awful lot of unsocial activity, some of it criminal, but, then, on this day, on this sentencing day, then all the family comes rolling in, family that they should have been spending time with as opposed to associating with these unsavory characters, and I find it particularly distasteful when the young children are used.

This is not the place. This is not the time, and the Court is not impressed. Matter of fact, I take a very, very dim view of using children in this way.

And, you know, I have delivered this message before with the hope that it would circulate and be communicated throughout the defense bar, but it persists. One day eight children under the age of 6 were paraded here in this case [apparently referring to a different defendant's sentencing proceeding]. That is just shameful, but I'm sorry.

Defense counsel explained that he would not have brought Rivera's young child if he had known the court's views on the matter, and resumed his argument for a minor role adjustment. The district judge, however, remained upset and, noting that the defense had indicated its willingness to continue sentencing if the court wanted more time to digest the sentencing papers, ordered the hearing continued and the courtroom cleared. Before the proceeding concluded, the district judge stated his intention to reconvene the sentencing proceedings a few days later, with "[j]ust the people involved."

The sentencing hearing resumed on August 27, 2010. This time, no family members were present. After defense counsel stated his appearance for the record, indicated Rivera's presence, and introduced his investigator, the district judge remarked: "This is the way a courtroom ought to look. All right. Let's pick up from where we left off." The court decided that Rivera was not entitled to a minor role reduction, and, after considering the relevant criteria, imposed a sentence of 97 months' imprisonment. Rivera appeals his sentence.


Rivera argues that the sentencing procedure in this case violated the Fifth and Sixth Amendments to the United States Constitution. Before turning to the merits of Rivera's constitutional challenges, we briefly address whether Rivera waived his right to appeal the district court's alleged violation of his constitutional rights.

A. The Appeal Waiver

Whether a criminal defendant has waived his right to appeal is reviewed de novo. United States v. Bibler, 495 F.3d 621, 623 (9th Cir. 2007). Unless certain exceptions apply, an appeal waiver is enforceable if the defendant knowingly and voluntarily waives his rights, and the language of the waiver covers the grounds raised on appeal. Id. at 623-24.*fn2

According to the terms of the appeal waiver in Rivera's plea agreement, Rivera waived "the right to appeal any sentence imposed by the [district court], and the manner in which the sentence is determined, provided that (a) the sentence is within the statutory maximum specified above and is constitutional . . . ." (Emphasis added). Both Rivera and the government-the parties to the plea agreement-have assumed, in their respective filings before this Court and at oral argument, that Rivera's appeal waiver did not preclude him from raising constitutional challenges to the manner in which his sentence was imposed.

Specifically, Rivera's brief states that "the plea agreement expressly allows for appealing an unconstitutional sentence, so if the court imposed the sentence on Mr. Rivera in violation of the Constitution, Mr. Rivera can appeal that sentence." The government accepts this premise, arguing, with respect to the public trial issue, only that Rivera's "sentence is not unconstitutional because there was no Sixth Amendment violation." Similarly, the government contends, with respect to Rivera's due process challenge, only that "[t]he district court did not violate [Rivera's] right to due process." By contrast, the government does argue that the appeal waiver covered the contention that the sentence was invalid because of a failure properly to consider sentencing disparity, noting, inter alia, that Rivera "has [not] claimed a constitutional violation with respect to alleged sentencing disparity." Although the government ultimately asks for the entire appeal to be dismissed pursuant to the appeal waiver, it does so, with respect to the constitutional issues raised, on the ground that they lack merit, not on the ground that they may not be considered.

[1] The parties' understanding that the appeal waiver does not include constitutional challenges to the manner in which Rivera's sentence was imposed rests on a plausible reading of the plea agreement. The affirmative coverage of the appeal waiver includes "the manner in which the sentence is determined," so it is sensible to understand the exception for a sentence that "is [not] constitutional" to mirror the affirmative coverage of the waiver and so to include an unconstitutionally imposed sentence, one imposed in violation of the Fifth and Sixth Amendments. Because ambiguities in the plea agreement must be construed in the defendant's favor, see, e.g., United States v. Charles, 581 F.3d 927, 931-32 (9th Cir. 2009), we agree with the parties' interpretation of the appeal waiver as not covering constitutional challenges to the manner of imposing the sentence.*fn3

B. Rivera's Sixth Amendment Right to a Public Trial

[2] Turning to the merits of Rivera's Sixth Amendment challenge, we must determine: (1) whether the Sixth Amendment right to a public trial attaches to sentencing proceedings; if so, (2) whether the closure at issue was trivial, and therefore exempt from Sixth Amendment analysis; if not, (3) whether Rivera forfeited his public trial right; if not, (4) whether the closure violated ...

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