                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 18 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   13-30289

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00053-JLQ-1
 v.

IAN MICHAEL HARRIS,                              MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of Washington
                  Justin L. Quackenbush, District Judge, Presiding

                      Argued and Submitted October 2, 2017
                              Seattle, Washington

Before: WARDLAW, CLIFTON, and OWENS, Circuit Judges.

      Ian Michael Harris appeals his conviction and sentence for conspiracy and

possession with intent to distribute 50 grams or more of methamphetamine, entered

pursuant to a plea agreement with the government. Because Harris’s appeal is




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ultimately barred by the waiver of appellate rights contained in the plea agreement,

we dismiss.

       However, because two of Harris’s claims on appeal—if successful—would

vitiate his appeal waiver, we must address those claims here. See United States v.

Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (“An appeal waiver will not apply if: 1) a

defendant’s guilty plea failed to comply with Fed. R. Crim. P. 11 . . . or 4) the

sentence violates the law.”); see also id. (“A sentence is illegal if it . . . violates the

Constitution.”).

       1.     We do not need to decide whether the district court might have

violated Federal Rule of Criminal Procedure 11’s prohibition on judicial

participation in plea discussions by advising Harris that the withdrawal of his

guilty plea “would be over my strong advice,” see United States v. Garfield, 987

F.2d 1424, 1426–27 (9th Cir. 1993), because Harris has not established that any

error affected his substantial rights or seriously affected the integrity of the judicial

proceedings, as he must in order to prevail under the plain error standard.1 See

United States v. Olano, 507 U.S. 725, 732 (1993). The evidence against

Harris—even discounting the fruits of the search of his home—was overwhelming.


       1
       Harris concedes that the plain error standard applies. See United States v.
Watson, 582 F.3d 974, 987 (9th Cir. 2009) (applying plain error to decide whether
unpreserved Rule 11 error vitiated appeal waiver).
                                             2
It included: a controlled purchase of 200 grams of methamphetamine directly from

Harris; additional methamphetamine, scales, packaging material, and five firearms,

all seized during a search of Harris’s business and vehicle; and the potential

testimony of Harris’s coconspirators. Moreover, Harris had independent

knowledge that the government planned to file a second 21 U.S.C. § 851

information if the case went to trial, which would have triggered a mandatory life

sentence. Given these factors, we cannot say that there was “a reasonable

probability that, but for the [possible] error, [Harris] would not have entered the

plea.” United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015) (internal

quotation marks omitted).

      2.     Harris’s argument that the district court constructively denied him

counsel in violation of the Sixth Amendment lacks merit. The district court did not

deny Harris’s motion to fire his attorney; instead, the court took that motion

seriously and held three ex parte hearings on the matter. Indeed, Harris ultimately

withdrew the motion. See United States v. Velazquez, 855 F.3d 1021, 1033–34

(9th Cir. 2017) (constructive denial of counsel occurs when the defendant “has,

with legitimate reason, completely lost trust in his attorney, and the trial court

refuses to remove the attorney”) (quoting Daniels v. Woodford, 428 F.3d 1181,

1198 (9th Cir. 2005)).


                                           3
      Nor did the court abuse its discretion by denying a motion for continuance

that implicated the right to counsel. See United States v. Thompson, 587 F.3d

1165, 1171 (9th Cir. 2009). To begin, neither of the requests for continuance

identified by Harris appears to implicate the right to counsel in the first place, and

so they cannot void the appeal waiver. The first request was made for the purpose

of obtaining a lawyer to provide a “second opinion” about the case, and Harris

cites no authority suggesting that such second-opinion counsel is guaranteed by the

Sixth Amendment. And the context of the second request makes clear that the

purpose of the proposed continuance was to give Harris more time to attempt to

renegotiate the plea agreement he had already signed. These requests are far

removed from the facts of cases in which we have analyzed continuance motions as

potentially implicating the Sixth Amendment. See Thompson, 587 F.3d at

1173–75; United States v. Garrett, 179 F.3d 1143, 1145–47 (9th Cir. 1999); United

States v. Studley, 783 F.2d 934, 938–39 (9th Cir. 1986).

      In any case, the district court did not abuse its discretion. The court issued a

written order explaining its treatment of Harris’s motions. See Garrett, 179 F.3d at

1147 (“When denying a continuance, especially one that arguably implicates the

defendant’s right to counsel, the district court should summarize in the record its

reasons for the denial.”). The court found that Harris was “creating disagreements”


                                           4
in order to make a record for subsequent collateral attack—that is, that legitimate

reasons for delay did not exist, and that Harris was not prejudiced. See Thompson,

587 F.3d at 1174 (listing factors district court should consider). The court’s

decision to deny Harris’s continuance motions was therefore not an abuse of

discretion.

      3.      Finally, Harris argues that his appeal waiver is invalid because the

district court advised him that he retained the right to appeal, and that the scope of

the waiver does not cover his remaining appellate claims. We reject these

arguments as well. The district court’s statements at sentencing did not create “a

reasonable expectation of a right to appeal” in the face of the explicit appeal waiver

contained in Harris’s plea agreement. United States v. Arias-Espinosa, 704 F.3d

616, 618 (9th Cir. 2012) (internal quotation marks omitted). And the plain

language of the waiver provision—which states that Harris waives “his right to

appeal the conviction and sentence”—encompasses claims of error in the

sentencing process like the Federal Rule of Criminal Procedure 32(e) issue Harris

raises here. See United States v. Martinez, 143 F.3d 1266, 1270–71 (9th Cir.

1998); cf. United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000) (“[A]n appeal

that includes an ineffective assistance of counsel at sentencing argument is still an

appeal from one’s sentence.”).


                                           5
      Because none of Harris’s arguments undermine the validity of the appeal

waiver contained in his plea agreement, we must dismiss his appeal.

      DISMISSED.




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