                                                                          FILED
                              NOT FOR PUBLICATION
                                                                            OCT 30 2015
                       UNITED STATES COURT OF APPEALS                  MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         Nos. 14-30064, 14-30065
                                                  D.C. Nos.    3:12-cr-00538-HZ-3
                Plaintiff - Appellee,             D.C. Nos.    3:12-cr-00562-HZ-1

     v.
CURTIS LAMONT BROWN,
                                                  MEMORANDUM*
                Defendant - Appellant.




                      Appeals from the United States District Court
                                for the District of Oregon
                       Marco Hernandez, District Judge, Presiding

                         Argued and Submitted October 13, 2015
                                   Portland, Oregon


Before: TASHIMA, GILMAN,** and BEA, Circuit Judges.


          Curtis Brown killed Jonas Miller on the Warm Springs Indian Reservation by

shooting him in the head while both men were heavily intoxicated. Six days later, he

helped dispose of the body of a young woman killed by others on the reservation.


*
 This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.

 The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S. Court of
**

Appeals for the Sixth Circuit, sitting by designation.
After his arrest for both offenses, the district court suggested that Brown and the

government should consider resolving the case before trial. They agreed to do so, and

the presiding judge referred the case to a magistrate judge for a settlement conference.

The magistrate judge helped the parties reach an agreement in which Brown pleaded

guilty to second-degree murder and accessory after the fact to first-degree murder.

The agreement also (1) required a joint recommendation for a 20-year prison term,

and (2) contained a waiver of Brown’s rights to pursue any appeals.

      Brown then appeared before the district judge for a change-of-plea hearing.

The judge extensively discussed the terms of both the plea agreement and the included

appellate-rights waiver. Brown confirmed that he understood these terms and stated

that he had not been pressured to enter into the plea agreement.

      The United States Probation Office then calculated Brown’s advisory

sentencing range under the Sentencing Guidelines to be 262 to 327 months of

imprisonment. Both the government and Brown complied with the plea agreement

by recommending a prison term of 20 years (240 months). At the consolidated

sentencing hearing, however, the district court heard testimony from Miller’s family

members to the effect that a 20-year term was not a sufficient punishment. The court

subsequently imposed a 25-year (300-month) sentence on the second-degree murder




                                          -2-
conviction. It also imposed a concurrent 15-year (180-month) sentence on the

accessory-after-the-fact conviction.

      Brown now appeals. He first argues that the appellate waiver in his plea

agreement is unenforceable. Brown next argues that his sentence should be vacated

because (1) the government breached the plea agreement, and (2) the district court did

not adequately explain the basis for the 25-year sentence.

      A knowing and voluntary appellate waiver is enforceable except in limited

circumstances, such as when a “defendant’s guilty plea [is] not taken in compliance

with Rule 11 of the Federal Rules of Criminal Procedure.” United States v. Jeronimo,

398 F.3d 1149, 1153 & n.2 (9th Cir. 2005), overruled on other grounds by United

States v. Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). Among other things,

Rule 11 precludes a district court from participating in plea negotiations. Fed. R.

Crim. P. 11(c)(1).

      In the present case, Brown’s plea agreement was reached with the involvement

of a magistrate judge. This court has previously approved such arrangements, so long

as the judge participating in the settlement conference was not the presiding or

sentencing judge. See United States v. Scolari, 72 F.3d 751 (9th Cir. 1995). But the

Supreme Court’s decision in United States v. Davila, 133 S. Ct. 2139 (2013), changed

this court’s analysis. As explained in the recent case of United States v. Myers, No.

13-10580, 2015 WL 5315376, (9th Cir. Sept. 14, 2015), “‘Rule 11(c)(1)’s prohibition
                                         -3-
of judicial involvement in plea discussions’ extends to magistrate judges who are

neither the sentencing judge nor the judge presiding over the defendant’s criminal

case.” Id. at *4 (emphasis in original) (quoting Davila, 133 S. Ct. at 2146). Based

on Myers, the magistrate judge’s participation in Brown’s plea negotiations violated

Rule 11, so the appellate waiver in the plea agreement is unenforceable. See

Jeronimo, 398 F.3d at 1153 n.2.

      This Rule 11 violation would also allow Brown to challenge the enforceability

of the plea agreement itself. See United States v. Kyle, 734 F.3d 956, 959 (9th Cir.

2013) (concluding that a Rule 11(c)(1) violation can justify vacature of a plea

agreement where the violation prejudices the defendant).         In the present case,

however, Brown asks that we instead remand this case to the district court for specific

performance of the plea agreement and enforcement of the parties’ accompanying

recommendation of a 20-year sentence.

      Brown’s first argument in support of remand is that the government breached

the plea agreement by eliciting unfavorable testimony from the family members of

Brown’s victim. To the extent that the government facilitated such testimony,

however, the government was simply fulfilling its statutory obligations under the

Crime Victims’ Rights Act. See 18 U.S.C. § 3771(a)(1)(4) (providing that victims

shall have the “right to be reasonably heard at any public proceeding in the district

court involving release, plea, [or] sentencing”); id. § 3771(c)(1) (“Officers and
                                          -4-
employees of the Department of Justice . . . shall make their best efforts to see that

crime victims are notified of, and accorded, the rights described in subsection [18

U.S.C. § 3771(a)].”).

      In any event, Brown’s claim is subject to the plain-error standard of review

because he failed to object to the testimony at his sentencing hearing. Relief is thus

available only if Brown can show that the alleged breach was a “clear or obvious”

error that affected his “substantial rights.” See Puckett v. United States, 556 U.S. 129,

135 (2009). An error impacts a defendant’s “substantial rights” only if there exists a

“reasonable probability” that the error affected the outcome of the sentencing. United

States v. Gonzalez-Aguilar, 718 F.3d 1185, 1189 (9th Cir. 2013).

      Brown cannot meet this standard because he has not shown that the 25-year

prison sentence imposed by the district court was based on the statements from

Miller’s family members. Instead, the court appears to have based its sentencing

decision on the parties’ written submissions and on its own interactions with Brown.

Particularly telling is the court’s statement that the 20-year term recommended by the

parties was not appropriate in light of Brown’s history and the parties’ prehearing

submissions. There was no plain error.

      Brown’s remaining argument is that the district court did not sufficiently

explain how it decided on a 25-year sentence. But because Brown’s 25-year term fell

within the Guidelines range of 262 to 327 months of imprisonment, the court had no
                                           -5-
need to supply a lengthy explanation for its decision. See Rita v. United States, 551

U.S. 338, 356 (2007) (“[W]hen a judge decides simply to apply the Guidelines to a

particular case, doing so will not necessarily require lengthy explanation.”). The court

noted, for example, that the 25-year sentence accounted for factors such as the need

to protect the public and the need to avoid unwarranted disparities in sentencing.

These statements and others indicate that the court “considered the parties’ arguments

and [had] a reasoned basis” for its decision. See id. No more was required. See, e.g.,

United States v. Carter, 560 F.3d 1107, 1119 (9th Cir. 2009) (“Because the record and

context make clear that the judge ‘considered the evidence and arguments,’ the district

court made no procedural error in imposing a within-Guidelines sentence.” (citation

omitted)).

      For all of the above reasons, WE AFFIRM.




                                          -6-
