NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. TOBIAS CHRISTOPHER VIGIL,

Defendant-Appellant. No. 16-10203 D.C. No. 2:06-cr-00299-WBS-1

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding Argued and Subm itted Novem ber 17, 2017 San Francisco, California Before: RAWLINSON and BYBEE, Circuit Judges, and FRIEDMAN, * * District Judge. Defendant-Appellant Tobias Vigil appeals the revocation of his supervised release on the ground that he did not knowingly and intelligently waive his due process right to a revocation hearing. As Vigil’s challenge is raised for the first 

# FILED

JUL 03 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The Honorable Paul L. Friedm an, United States District Judge for the District of Colum bia, sitting by designation.tim e on appeal, we review for plain error. United States v. Olano , 507 U.S. 725,

734 (1993); see United States v. Carter , 795 F.3d 947, 950 (9th Cir. 2015). Vigil was charged with two violations of the conditions of his supervised release. With counsel, he attended two status conferences in which his intent to adm it to the second charge and the scheduling of an evidentiary hearing on the first charge were discussed. Shortly before the scheduled revocation hearing, a stipulation signed by the governm ent and Vigil’s counsel—but not Vigil—was filed, stating that Vigil adm itted to the petition’s second charge and stipulated the
governm ent could prove by a preponderance of the evidence the facts alleged in the petition. During the Novem ber 2, 2015, hearing, at which Vigil was present and represented by counsel, his counsel represented that she had discussed the stipulation with Vigil and that he was in agreem ent with the acceptance of the stipulation. After accepting the stipulation and finding the stipulated facts sufficient to prove the violation alleged in the first charge, the court questioned Vigil as to the second charge. The court erroneously advised Vigil that he “could be put back in prison for another term of up to two years” if he adm itted the second charge. The
correct m axim um sentence was five years, as Vigil had been advised in his initial plea agreem e nt, his previous revocation proceedings, and the petition for this

2revocation proceeding. The court noted that Vigil “would also have the right to a

hearing with regard to charge num ber 2,” and questioned Vigil to ensure he understood “that the facts [he’d] stipulated to can constitute a violation of both charge num

ber 1 and charge num

ber 2.” Vigil confirm ed that he understood the effect of the stipulation he had entered through counsel and adm itted to the second charge. At no tim e during these or subsequent proceedings did Vigil object, m ove to withdraw the stipulation or plea, or suggest that any waiver of his due process rights was not m ade knowingly and intelligently. Vigil now argues that the stipulation as to the first charge “was tantam ount to a waiver of [his] right to a revocation hearing” which “was not knowing and intelligent.” Vigil was entitled to “an opportunity to appear, present evidence, and question any adverse witness.” Fed. R. Crim . P. 32.1(b)(2)(C). Because Vigil stipulated through his counsel to the governm ent’s ability to prove the facts alleged, he had the opportunity required by the rule. “[T] he district court did not deny [Vigil] his due process rights in not conducting an evidentiary hearing

. ” United States v. Verduzco , 330 F.3d 1182, 1186 (9th Cir. 2003). “[W] e have repeatedly held that crim inal defendants are bound by the adm issions of fact m ade by their counsel in their presence and with their authority,” United States v. Hernandez-Hernandez , 431 F.3d 1212, 1219 (9th Cir. 2005) (collecting cases), and

3we do not require Rule 32.1(b)(2) advisem ents at revocation hearings, see United

States v. Segal , 549 F.2d 1293, 1300 (9th Cir. 1977). The district court did not plainly err. As to Vigil’s adm ission to the second charge, the district court’s erroneous advisem ent of the m axim um sentence during the Novem ber 2 hearing did not affect Vigil’s substantial rights. Vigil had repeatedly been advised of the correct

m axim um penalty and indicated his intent to adm it to the charge prior to the erroneous advisem e nt. Moreover, as the district court advised Vigil and Vigil confirm ed he understood, the stipulated facts were sufficient to find the violation alleged in the second charge. Vigil also appeals his five-year sentence—the statutory m axim um —as substantively unreasonable, arguing that the sentence denied Vigil access to a residential drug treatm ent program . We review the district court’s sentencing decision for abuse of discretion. United States v. Carty , 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The district court considered the record before it, including Vigil’s argum ents regarding his need for drug treatm ent, and the proper statutory factors. The sentence was not substantively unreasonable. AFFIRMED.

4U.S. v. Vigil , Case No. 16
- 10203 Friedman, District Judge, concurring in part and dissenting in part : I agree with the majority that the sentence imposed by the district court was not substantively unreasonable. I respectfully dissent, however, from the majority’s determination that Defendant

- Appellant Tobias Vigil received all the due process to which he was entitled

. First, I think it important to recognize that Vigil is not asserting a forfeited error, but an invalid waiver

— he argues that the waiver of his due process right to

a revocation hearing was not knowingly and intelligently made. And “ [w] aiver is different from forfeiture.” United States v. Olano , 507 U.S. 725 , 733 (1993). If this case involved a forfeited error, I would agree that the plain error stand ard of review sh ould apply. But under this c ourt’s precedents, whether there was a

wa iver that comported with the due process requirements incorporated in to Rule 32.1 of the Federal Rules of Criminal Procedure is reviewed de novo

. See United States v. Perez , 526 F.3d 543, 547 (9th Cir. 2008); United States v. Havier , 155 F.3d 1090, 1092 (9th Cir. 1998) ; cf. United States v. Stocks , 10 4 F.3d 308, 312 (9th Cir. 1997) ( w here district court made factual findings as to validity of waiver , voluntariness reviewed de novo , but findings of fact as to knowledge and intelligence reviewed for clear error )

. And w here th is c ourt finds a violation of due 

# FILED

JUL 3 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

process in the revocation context , that violation is then subject to harmless error analysis. See Perez , 526 F.3d at 547; United States v. Verduzco , 330 F.3d 1182, 1184 (9th Cir. 2003); Havier , 155 F.3d at 1092. These standard s of review apply

even if a defendant did not object to the due process violation in the district court, as in this case. See Havier , 155 F.3d at 1092. I acknowledge that waiver of a hearing or other rights under Rule 32.1 does not require the formalities of a Rule 11 plea proceeding. Nevertheless, the plain language of the Rule provides that a court must hold a hearing in order to revoke a term of probation or supervised release unless that hearing is “waived by the
p erson.” See F ED
. R. C RIM
. P. 32.1(b)(2). And this c ourt has made clear that a waiver of rights under Rule 32.1 must be knowing, intelligent, and voluntary: “Given the importance of these interests [in due process and the assistance of counsel] and the role Rule 32.1(b) plays in securing these interests in the probation modification context, the Rule 32.1(b) rights at issue require the application to a waiver of the knowing, intelligent, and voluntary standard .” See Stocks , 104 F.3d at 311

– 12 ; see also United States v. LeBlanc , 175 F.3d 511, 515 (7th Cir. 1999) (“We join the Ninth and Second Circuits today and hold that a waiver of the right to a revocation hearing must be knowing and voluntary.”). Considering the record in this case, I am not convinced that the waiver was sufficient to satisfy the due
pro cess requirements of Rule 32.1.3

In assessing the validity of a waiver, this c ourt looks to the “totality of the circumstances,” see United States v. Doe , 155 F.3d 1070, 1074 (9th Cir. 1998), although a court must not impose overly strict formalities when reviewing those circumstances in the revocation context

. T he detail and care taken

— or not taken

— by the trial court in its colloquy at a revocation hearing is one important circumstance to be considered in determining whether a waiver of rights was knowing and intelligent. See United States v. Correa

- Torres , 326 F.3d 18, 23

– 24 (1st Cir. 2003). H ere, the district court did not engage Vigil in any colloquy or make any explicit findings regarding Vigil’s knowledge or understanding before accepting his lawyer’s stipulation to charge 1. And t he record does not indicate that Vigil understood his rights under Rule 32.1 and knowingly and intelligently waived them before counsel signed and submitted the stipulation on his behalf. Nor did the court advise Vigil of any maximum statutory penalty with regard to charge 1. W hen the district court judge did briefly address Vigil personally , the judge affirmatively misadvise d him as to the maximum sentence he faced with regard to charge 2. The judge asked Vigil whether he understood that he faced a statutory maximum of two years and Vigil responded, “Yes, I do.” But the judge later imposed a five

- year term of imprisonment

. Because the district court did not make any factual findings as to the validity of the waiver, and because Vigil has raised a colorable argument that his waiver4

was not in fact knowingly and intelligently made, Vigil is entitled to a de novo review of the waiver of his due process r ight to a revocation hearing. If the waiver were found to be valid , that would end the inquiry. See, e.g. , Olano , 507 U.S. at 732

– 33. But in the absence of any affirmative evidence suggesting that Vigil knowingly and intelligently waived his due proces s rights

— and coupled with the district court’s mistaken representation to Vigil that he faced a maximum statutory penalty of only two years and Vigil’s affirmative response that he understood the

same

— I cannot determine the waiver to have been valid

. And I cannot find an invalid waiver of a constitutional due process right to be a harmless error.