                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 02 2011

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 10-50137

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00511-PA-1

  v.
                                                 MEMORANDUM*
PAVEL IGOREVICH VALKOVICH,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                          Submitted February 11, 2011**
                              Pasadena, California

Before: GOODWIN, D.W. NELSON, and N.R. SMITH, Circuit Judges.

       Pavel Igorevich Valkovich appeals his conviction after a guilty plea and

sentencing for solicitation of a crime of violence in violation of 18 U.S.C. § 373.

He claims that (1) the district court improperly influenced him to plead guilty;


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(2) failed to consider defendant-specific facts in imposing the sentence; and his

sentence is (3) procedurally and (4) substantively unreasonable. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1.     The District Court’s Participation in the Plea Process

      The district court did not commit plain error when it stated during a pretrial

conference that “this case should be resolved short of trial” or when it responded to

defense counsel’s request to “extrapolate on” this statement by stating “the

defendant needs treatment” and “I’m just not sure that having a trial is ultimately in

everybody’s best interest in this case.” See United States v. Vonn, 535 U.S. 55, 59

(2002). While a district court “must not participate in [plea discussions],” Fed. R.

Crim. P. 11(c)(1), Rule 11 is not intended to “establish a series of traps for

imperfectly articulated oral remarks,” United States v. Frank, 36 F.3d 898, 903

(9th Cir. 1994). Instead, the court’s inquiry should be whether “the judge

pressures the defendant into taking the deal.” United States v. Andrade-Larrios, 39

F.3d 986, 989 (9th Cir. 1994).

      The transcript shows that the district court’s statements did not target

Valkovich in an attempt to coerce him into taking a plea agreement. Thus, the

district court did not commit plain error under Rule 11.

      2.     Competency Hearing


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      The transcript of the pretrial status conference and change of plea hearing

demonstrate that a reasonable judge would not “be expected to experience a

genuine doubt” about Valkovich’s competence and order a competency hearing sua

sponte. United States v. Lewis, 991 F.2d 524, 527 (9th Cir. 1993) (internal

quotation marks and citation omitted).

      The district court inquired about Valkovich’s mental illness, medications,

and drug use issues. Valkovich was not on a suicide watch and had been cleared

by a doctor to appear in court. In addition, Valkovich’s attorney confirmed that

Valkovich was competent to plead guilty at the change of plea hearing. The

change of plea hearing transcript showed that Valkovich had “sufficient present

ability to consult with his lawyer with a reasonable degree of rational

understanding-and [] he ha[d] a rational as well as factual understanding of the

proceedings against him.” Drope v. Missouri, 420 U.S. 162, 172 (1975).

      3.     Procedural Reasonableness

      The district court did not commit plain error in considering Valkovich’s

doctor’s affidavits rather than hearing testimony because crediting the affidavits

was within the district court’s discretion. See United States v. Berry, 258 F.3d

971, 976 (9th Cir. 2001) (“Where, as here, the district court allows the defendant to

rebut the recommendations and allegations of the presentence report either orally


                                          3
or through the submission of written affidavits or briefs, Rule 32 does not require

an evidentiary hearing.”).

      4.     Substantive Reasonableness

      The district court did not abuse its discretion when it sentenced Valkovich to

180 months for the solicitation charge. See United States v. Amezcua-Vasquez, 567

F.3d 1050, 1055 (9th Cir. 2009). The district court considered “defendant-specific

facts” when it discussed Valkovich’s mental health issues and issued a below

guideline and below maximum sentence in consideration of those factors. Id. at

1057. In addition, a review of the transcript does not leave us with a “firm

conviction” that Valkovich’s sentence is a “clear error of judgment.” Id. at 1055.

Valkovich created a plan to kill another human being. He gave specific

instructions that required coordinating other people to carry out the murder.

      AFFIRMED.




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