                                                                           FILED
                           NOT FOR PUBLICATION                             SEP 02 2014

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



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 13-30169

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00047-MJP-1

  v.
                                                 MEMORANDUM*
HERMINIO SILVA, aka Aguilar, aka
Gavilan,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Western District of Washington
                Marsha J. Pechman, Chief District Judge, Presiding

                           Submitted August 27, 2014**
                              Seattle, Washington

Before: NOONAN, GRABER, and CHRISTEN, Circuit Judges.

       Defendant Herminio Silva pleaded guilty to one count each of conspiracy to

distribute controlled substances, in violation of 21 U.S.C. §§ 841 and 846; and

distribution of cocaine, distribution of heroin, and possession of methamphetamine


        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
with intent to distribute, each in violation of § 841. Defendant timely appeals,

arguing that the district court improperly participated in plea negotiations, in

violation of Federal Rule of Criminal Procedure 11(c)(1), and that, in the

alternative, the district court’s comments rendered his plea involuntary. Reviewing

de novo whether the district court improperly participated in plea negotiations,

United States v. Bruce, 976 F.2d 552, 555 (9th Cir. 1992), and whether a guilty

plea was voluntary, United States v. Forrester, 616 F.3d 929, 934 (9th Cir. 2010),

we affirm.

      1. The district court did not violate Rule 11(c)(1) because it did not take part

in "any discussion or communication regarding the sentence to be imposed prior to

the entry of a plea." Bruce, 976 F.2d at 556 (internal quotation marks omitted). In

response to comments from Defendant and his lawyer that Defendant wanted to

accept responsibility, the district court said that "it’s always [Defendant’s] option

to go forward and plead. He doesn’t necessarily have to have a deal." That

comment is easily distinguishable from remarks in cases in which the sentencing

court violated Rule 11 by encouraging the defendant to accept a plea agreement in

order to avoid the risk of a more severe sentence at trial. See, e.g., United States v.

Davila, 133 S. Ct. 2139, 2143–44 (2013); Bruce, 976 F.2d at 555. Here, by

contrast, the district court took "no part whatever" in pre-plea sentencing


                                           2
discussions, Bruce, 976 F.2d at 556, and exerted no "implicit or explicit pressure to

settle . . . on terms favored by the judge," United States v. Frank, 36 F.3d 898, 903

(9th Cir. 1994).

      2. The district court’s comment did not render Defendant’s plea involuntary.

After reviewing the record in its entirety, United States v. Kaczynski, 239 F.3d

1108, 1114 (9th Cir. 2001), we conclude that the plea was voluntary. Defendant

stated under oath that his plea was voluntary, and we give such statements

significant weight. United States v. Andrade-Larrios, 39 F.3d 986, 990–91 (9th

Cir. 1994). Furthermore, the strength of the government’s case against Defendant

and his stated desire to accept responsibility—and receive whatever sentencing

credit might be available—provided a rational basis for his change of plea. Such a

rational basis alone may serve as evidence of a plea’s voluntariness. Kaczynski,

239 F.3d at 1115. The district court did not suggest that it preferred that Defendant

plead guilty, or that it would be unable to conduct a fair trial if Defendant chose to

proceed to trial. Accordingly, Defendant’s plea was voluntary because he

remained able to "make a free choice among the acceptable alternatives available."

United States v. Hernandez, 203 F.3d 614, 618 n.5 (9th Cir. 2000), overruled on

other grounds by Indiana v. Edwards, 554 U.S. 164 (2008).

      AFFIRMED.


                                           3
