The Federal Rules broadly define “[c]ourt” to “mean[ ] a federal judge performing functions authorized by law,” Fed.R.Crim.P. 1(b)(2), a definition which expressly includes “a magistrate judge” executing his or her legal duty, Fed.R.Crim.P. 1(b)(3)(B). While Rule 11(c)(1) appears to prohibit any form of judicial participation in the plea bargaining process, our “court previously approved the participation by a settlement judge in plea negotiations.” United States v. Scolari, 72 F.3d 751, 753 (9th Cir.1995); see United States v. Torres, 999 F.2d 376, 377–78 (9th Cir.1993) (per curiam) (holding that no Rule 11 violation occurred when “[t]he parties ... hammered out their agreement with the assistance of [a settlement judge]” in accordance with the then-existing criminal case settlement procedures for the Southern District of California). Torres and Scolari did not address, much less resolve, the conflict between the plain language of Rule 11(c)(1)—which categorically prohibits “[t]he court” from participating in plea negotiations—and the local rule's allowance of judge-led criminal settlement conferences. Rather, these decisions appear to distinguish criminal settlement conferences from the scope of Rule 11(c)(1) on the basis that “the sentencing judge ... did not participate in any plea bargaining.”
While Rule 11(c)(1) appears to prohibit any form of judicial participation in the plea bargaining process, our “court previously approved the participation by a settlement judge in plea negotiations.” United States v. Scolari, 72 F.3d 751, 753 (9th Cir.1995) ; see United States v. Torres, 999 F.2d 376, 377–78 (9th Cir.1993) (per curiam) (holding that no Rule 11 violation occurred when “[t]he parties ... hammered out their agreement with the assistance of [a settlement judge]” in accordance with the then-existing criminal case settlement procedures for the Southern District of California). Torres and Scolari did not address, much less resolve, the conflict between the plain language of Rule 11(c)(1) —which categorically prohibits “[t]he court” from participating in plea negotiations—and the local rule's allowance of judge-led criminal settlement conferences.
We review this claim de novo. United States v. Torres, 999 F.2d 376, 378 (9th Cir.1993). Before we do, however, it bears repeating that neither Collins nor the government lodged any objections to the court's proposal of holding an additional hearing to correct the mistake and ensure the record was clear that Collins was pleading to the intended charge in the First Superseding Indictment.
Under the terms of the plea agreement, Robles has waived the right to appeal his sentence. See United States v. Torres, 999 F.2d 376, 378 (9th Cir. 1993) (per curiam); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991). Contrary to Robles's arguments, the plea agreement did not give Robles the right to appeal his sentence if the district court miscalculated his criminal history category.
(E.C.R. 30-32) We have three recent cases which establish how such Rule 11(e)(1) "participation" arguments should be addressed. Bruce, 976 F.2d 552; United States v. Torres, 999 F.2d 376 (9th Cir. 1993); United States v. Frank, 36 F.3d 898 (9th Cir. 1994). Bruce holds that if the judge pressures the defendant into taking the deal, it is improper judicial participation, and the defendant is entitled to have his plea set aside.
Additionally, although the Ninth Circuit has not addressed Local Rule 17.2, it has implicitly held that the use of a settlement judges in settlement proceedings does not violate Rule 11. See United States v. Scolari, 72 F3.d 751 (9th Cir. 1995) ("This court previously approved the participation by a settlement judge in plea negotiations."); United States v. Torres, 999 F.2d 376 (9th Cir. 1993). In Torres, the parties used a district court judge to discuss a proposed plea agreement before conveying the agreement to the sentencing judge pursuant to the Southern District of California local rules.
Before the district court and initially on appeal, the government argued that the participation by Judge Martinez in the settlement conference did not violate Rule 11, because Judge Martinez otherwise had no role in the criminal case. See United States v. Scolari, 72 F.3d 751, 753 (9th Cir.1995) (“This court previously approved the participation by a settlement judge in plea negotiations in United States v. Torres, 999 F.2d 376[, 377] (9th Cir.1993) [ (per curiam) ].”). On the eve of oral argument, however, the government informed this court that,
When reviewing an allegation of a Rule 11 violation, we exercise plenary review. See United States v. Torres, 999 F.2d 376, 378 (9th Cir. 1993). III.
United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir.1990). Thus, Rodriguez's waiver of the right to appeal his conviction and sentence is valid, see United States v. Torres, 999 F.2d 376, 378 (9th Cir.1993) (per curiam) (upholding appeal waiver where there was no breach of plea agreement), and the appeal is DISMISSED.
Vasquez's waiver of his right to appeal is valid. SeeUnited States v. Torres, 999 F.2d 376, 378 (9th Cir.1993) (per curiam) (waiver of appeal valid where no breach of plea agreement). The appeal is DISMISSED.