Argued and Submitted June 12, 2013.
[Copyrighted Material Omitted]
Ethan A. Balogh, Coleman & Balogh LLP, San Francisco, CA, for Defendant-Appellant.
Melinda Haag, Barbara J. Valliere, and Owen P. Martikan, Office of the United States Attorney, San Francisco, CA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Northern District of California, Jeffrey S. White, District Judge, Presiding. D.C. No. 3:10-cr-00245-JSW-1.
Before: MARSHA S. BERZON and JAY S. BYBEE, Circuit Judges, and CONSUELO B. MARSHALL, Senior District Judge.[*]
MARSHALL, District Judge:
Appellant-defendant Kenneth Martin Kyle pleaded guilty to one count of aggravated sexual abuse of a child, in violation of 18 U.S.C. § 2241(c), for which he received a 450-month sentence. On appeal, Kyle argues his guilty plea and sentence must be set aside because the District Court impermissibly and prejudicially participated in his plea negotiations.
After hearing oral argument, we vacated submission and ordered supplemental briefing  following the Supreme Court's decision in United States v. Davila,
__ U.S. __, 133 S.Ct. 2139, 186 L.Ed.2d 139 (2013). The question presented in Davila was " whether ... the violation of [Fed.R.Crim.P. (" Rule" ) ] 11(c)(1) by the Magistrate Judge warranted automatic vacatur of Davila's guilty plea." Id. at 2143. The Supreme Court held that automatic vacatur is inappropriate, explaining that " vacatur of the plea is not in order if the record shows no prejudice to [the defendant's] decision to plead guilty." Id. at 2150. Davila abrogated the prior rule in this circuit that " Rule 11's ban [on judicial participation in plea negotiations is] an absolute command which admits of no exceptions." Id. at 2146 n. 2 (quoting United States v. Anderson, 993 F.2d 1435, 1438-39 (9th Cir.1993)) (alteration in original). Rather, the " reviewing court [must] consider all that transpired in the trial court" to assess the impact of the judge's error on the decision to plead guilty. Id. at 2148. We now follow Davila and review the District Court's alleged violation of Rule 11(c)(1) in light of the prejudice inquiry required. After careful consideration of the full record of this appeal, we find that the District Court participated in the parties' plea discussions by prematurely committing itself to a sentence of a specific severity. The District Court's participation prejudiced Kyle. We hold that Kyle's plea must be VACATED and this appeal REMANDED for further proceedings.
Kenneth Martin Kyle was an assistant professor of public affairs and administration at California State University, East Bay in Hayward, California. Kyle first came to the attention of the Federal Bureau of Investigation (" FBI" ) in December 2009 when an FBI agent using peer-to-peer file sharing software in an undercover capacity noticed a user with the moniker " cruelsob" sharing image and video files with titles indicative of child pornography. The agent downloaded 148 child pornography images and one video file containing child pornography from " cruelsob." Later investigation revealed tat " cruelsob" was associated with Kyle. The FBI referred the case to the San Francisco Police Department (" SFPD" ) for further investigation.
The SFPD obtained a warrant and searched Kyle's apartment. Following the search, the SFPD arrested Kyle. An examination of text messages from Kyle's cell phone and images from his computer linked Kyle with a woman named Tessa Van Vlerah. Some of the images from Kyle's computer depicted Van Vlerah and her infant child engaged in sexual acts with an adult male whose face was not shown. Van Vlerah later identified Kyle as the adult male in the images and admitted that she and Kyle had molested the child.
Kyle was indicted on April 1, 2010 for one count of aggravated sexual abuse of a child, in violation of 18 U.S.C. § 2241(c), and one count each for production, distribution, possession, and transportation of child pornography, in violation of 18 U.S.C. §§ 2251 and 2252. Kyle and the government finalized the first plea agreement on May 26, 2011. Pursuant to the first plea agreement, Kyle agreed to plead guilty to Count One, violation of 18 U.S.C. § 2241(c). In exchange, the parties agreed that the mandatory minimum penalty provided in 18 U.S.C. § 2241(c) of 360 months would be an appropriate custodial sentence. The District Court accepted Kyle's guilty plea on May 26, 2011, but reserved ruling on the plea agreement pending the District Court's review of the Pre-Sentence Report.
On October 11, 2011, the District Court notified the parties of its intention to reject the first plea agreement. On October 13, 2011, the date originally set for judgment and sentencing, the District Court explained that the plea agreement was too lenient, and expressed his view that, " [this case] warrants an above-guideline sentence, substantially above-guideline sentence, and not necessarily the statutory maximum [of life imprisonment]." The District Court also stated
[Y]ou may be acquitted ... but if you are convicted, the seriousness of what you did to this little girl has to be reflected in the sentence, and the seriousness of some of the comments that you made that were fantasies has to be part of the sentence, and the seriousness of the uncharged conduct, all the child pornography that you possess, which is not part of the guideline calculation has to be taken into account.
The District Court allowed Kyle to withdraw his guilty plea
On February 2, 2012, the District Court warned the parties that they should either prepare for trial or reach a plea agreement. Counsel for Kyle responded that " we still would like to resolve the case without trial," and offered to provide the District Court with more information on the potential sentencing range by obtaining an actuarial calculation on an effective life sentence for Kyle. The District Court and counsel then engaged in the following colloquy:
The Court: Well, [the actuary] is and it isn't [helpful], because I said that the Court's view is that this man is never going to get out of jail, period. So telling me that you're going to submit an evaluation of an actuary doesn't really help me because, quite frankly, ...