USA v. Francheska Brizan

Filing

FILED OPINION (A. WALLACE TASHIMA, SUSAN P. GRABER and LYNN S. ADELMAN) DISMISSED., Judge: LSA Authoring. FILED AND ENTERED JUDGMENT. [8536664]

Case: 11-10449

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ID: 8536664

DktEntry: 41-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

No. 11-10449

v.

D.C. No.
1:06-CR-059AWI-008

FRANCHESKA BRIZAN ,
Defendant-Appellant.

OPINION

On Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted
January 14, 2013—San Francisco, California
Filed March 5, 2013
Before: A. Wallace Tashima and Susan P. Graber,
Circuit Judges, and Lynn Adelman,* District Judge.
Opinion by Judge Adelman

*

The Honorable Lynn Adelman, United States District Judge for the
Eastern District of W isconsin sitting by designation.

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SUMMARY**

Criminal Law
The panel dismissed, as waived, an appeal from a
conviction by guilty plea to misprision of a felony in a case
in which the defendant argued that the district court should
have allowed her to withdraw her guilty plea because the
charge violated her Fifth Amendment privilege against selfincrimination, the information failed to allege an essential
element of misprision, and the plea lacked an adequate factual
basis.
The panel enforced the waiver of the right to appeal in the
plea agreement where the district court conducted a thorough
Fed. R. Crim. P. 11 colloquy, which included an
admonishment regarding the appeal waiver and ensured that
the plea was knowing and voluntary, and where the sentence
did not contradict the agreement or exceed statutory limits.
The panel wrote that to the extent that a constitutional
claim of the sort the defendant raises could survive a waiver,
it found no merit in the argument that the misprision charge
violated her Fifth Amendment rights. The panel wrote that
the defendant waived her right to raise a Fifth Amendment
defense to the misprision charge by pleading guilty, and
agreed with the First and Fifth Circuits that there is no
constitutional impediment to a defendant, implicated in the
underlying felony, waiving her Fifth Amendment privilege
and voluntarily pleading guilty to a misprision count.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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The panel declined to entertain the defendant’s ineffective
assistance of counsel claim on direct appeal.

COUNSEL
William Mallory Kent, The Law Office of William Mallory
Kent, Jacksonville, Florida, for Defendant-Appellant.
Karen A. Escobar, Assistant U.S. Attorney, Fresno,
California, for Plaintiff-Appellee.

OPINION
ADELMAN, District Judge:
A grand jury indicted Francheska Brizan, her husband,
and others on charges of conspiring to distribute 5 kilograms
or more of cocaine and attempted possession with intent to
distribute 500 grams or more of cocaine. After extensive pretrial proceedings, Brizan entered into a plea agreement with
the government. Pursuant to the agreement, she pleaded
guilty to an information charging misprision of a felony, in
violation of 18 U.S.C. § 4, based on her concealment and
failure to notify authorities of her husband’s drug trafficking
activities. The plea agreement contained a waiver of Brizan’s
right to appeal her conviction or sentence. Represented by
new counsel, Brizan later moved to withdraw her plea and
dismiss the information as defective. The district court
denied the motion, then imposed a below-guideline sentence
of four months’ imprisonment followed by one year of
supervised release.

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Brizan appeals, arguing that the district court should have
allowed her to withdraw her plea because the misprision
charge violated her Fifth Amendment privilege against selfincrimination, the information failed to allege an essential
element of misprision, and the plea lacked an adequate factual
basis. Because Brizan cannot overcome the appeal waiver
contained in her plea agreement, we dismiss her appeal.
“We have consistently read general waivers of the right
to appeal to cover all appeals, even an appeal from the denial
of a motion to withdraw a guilty plea.” United States v.
Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). We decline to
enforce an appeal waiver only if the district court failed to
comply with Federal Rule of Criminal Procedure 11, the court
informed the defendant that she retained the right to appeal,
the sentence did not comport with the terms of the plea
agreement, or the sentence violated the law. United States v.
Bibler, 495 F.3d 621, 624 (9th Cir. 2007). None of these
exceptions applies here. The district court conducted a
thorough Rule 11 colloquy, which included an admonishment
regarding the appeal waiver,1 ensuring that the plea was
knowing and voluntary, and Brizan’s sentence did not
contradict the agreement or exceed statutory limits.
To the extent that a constitutional claim of the sort Brizan
raises could survive an appeal waiver, see United States v.
Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986) (stating that an
“illegal” sentence includes a sentence in excess of the
permissible statutory penalty or in violation of the

1

The district court initially did not see the waiver provision. However,
after the Assistant United States Attorney brought the provision to the
court’s attention, the court reviewed its terms with Brizan, confirming that
she understood and waived her appellate rights.

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Constitution), we find no merit in Brizan’s argument that the
misprision charge violated her Fifth Amendment rights. We
have held that a misprision charge would be unconstitutional
under the Fifth Amendment if, and to the extent, it required
a defendant to report her own criminal conduct to the
authorities. United States v. King, 402 F.2d 694, 697 (9th
Cir. 1968); see also United States v. Pigott, 453 F.2d 419, 419
(9th Cir. 1971) (per curiam).
However, Brizan waived her right to raise a Fifth
Amendment defense to the misprision charge by pleading
guilty. An unconditional guilty plea waives all nonjurisdictional defenses and cures all antecedent constitutional
defects, allowing only an attack on the voluntary and
intelligent character of the plea. E.g., United States v.
Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012) (per curiam);
United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th
Cir. 2005). We agree with our colleagues in the First and
Fifth Circuits that there is no constitutional impediment to a
defendant, implicated in the underlying felony, waiving her
Fifth Amendment privilege and voluntarily pleading guilty to
a misprision count. See, e.g., United States v. CaraballoRodriguez, 480 F.3d 62, 72 n.7 (1st Cir. 2007); United States
v. Mizell, 88 F.3d 288, 296 (5th Cir. 1996); United States v.
Davila, 698 F.2d 715, 719 (5th Cir. 1983).
Brizan’s appeal accordingly must be dismissed pursuant
to the waiver. See Rahman, 642 F.3d at 1260. Brizan
suggests that her lawyer provided ineffective assistance of
counsel in connection with the plea, but we decline to address
that issue on direct appeal. Brizan may raise such a claim in
a collateral proceeding, where a complete record can be
developed. See id. at 1259–60 (declining to consider
ineffective assistance on appeal but leaving open the

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possibility of such a claim in a subsequent collateral attack);
see also Washington v. Lampert, 422 F.3d 864, 871 (9th Cir.
2005) (holding that a plea agreement that waives the right to
file a collateral attack is unenforceable with respect to an
ineffective assistance claim that challenges the voluntariness
of the waiver). Because we must dismiss this appeal, we do
not reach the merits of Brizan’s remaining contentions.
DISMISSED.

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