Unreported / Non-Citable
Background
Brett Barber pleaded guilty in the Central District of California to two counts of wire fraud and one count of criminal contempt. At his plea colloquy, he confirmed under oath that his plea was voluntary and that he was satisfied with his attorney's representation. Although he initially discredited the government's allegations, he accepted them after an off-record conversation with his attorney, and the district court accepted his plea.
Barber later moved to withdraw the plea, claiming it was involuntary because of what he called inadequate and erroneous legal advice. The district court denied the motion, sentenced him to 181 months in prison, and imposed a fine at the bottom of the guideline range. On appeal, Barber challenged the denial of his withdrawal motion, the reasonableness of his sentence, the district court's refusal to record findings for each U.S.S.G. § 5E1.2(d) factor before imposing the fine, and the court's refusal to orally recite each supervised release condition.
The Court’s Holding
The panel first held that Barber's appeal of the denial of his motion to withdraw his guilty plea was barred by his appeal waiver. The plea agreement explicitly barred all appeals of his convictions, including even an appeal from the denial of a motion to withdraw a guilty plea. Barber's attempt to circumvent the waiver by claiming involuntariness amounted to nothing more than an ineffective assistance of counsel claim, which cannot be raised on direct appeal unless the record is sufficiently developed or the representation was obviously inadequate. Neither exception applied: the claim rested on an off-record discussion supported only by Barber's own declaration, while the record showed he affirmed under oath that he was satisfied with counsel and that his plea was voluntary. Nor were the attorney's alleged statements—that Barber was risking life in prison by going to trial and that he could always move to withdraw the plea—obviously deficient, because both statements were true.
On the sentence, the panel held that the 181-month term was not substantively unreasonable even though Barber's co-conspirator received probation, because the two were not similarly situated: the co-conspirator served as a cooperating witness, while Barber fled after his pre-trial release was revoked and picked up an additional criminal contempt charge. The panel also rejected, on plain error review, Barber's claim that the district court had to make enumerated findings on each of the eight § 5E1.2(d) fine factors, explaining that the guidelines require consideration of the factors but not on-the-record findings for each one. Finally, the court held that the district court satisfied the oral pronouncement requirement for supervised release conditions by incorporating a standing order listing the conditions by reference, a practice Barber acknowledged in his reply brief. The court dismissed the appeal in part and affirmed in part.
Key Takeaways
- A plea agreement that expressly waives even an appeal from the denial of a motion to withdraw a guilty plea will be enforced, leaving the defendant no route to challenge the plea-withdrawal ruling on direct appeal.
- Reframing an involuntary plea claim as inadequate legal advice does not avoid the waiver, because ineffective assistance claims generally cannot be raised on direct appeal absent a developed record or obviously deficient representation.
- An attorney's accurate statements about trial risk and the availability of a motion to withdraw do not obviously constitute ineffective assistance, even if the client later regrets the plea.
- A large sentencing disparity with a co-conspirator is not unreasonable where the co-conspirator cooperated and the defendant fled and committed additional contempt, making them not similarly situated.
- District courts need not make enumerated findings on each § 5E1.2(d) fine factor and may satisfy the oral pronouncement rule for supervised release conditions by incorporating a standing order by reference.
Why It Matters
The memorandum reinforces the Ninth Circuit's strict enforcement of broad appeal waivers in plea agreements, including waivers that expressly cover appeals from denials of motions to withdraw guilty pleas. It illustrates that defendants cannot repackage ineffective assistance grievances as involuntariness claims to escape such waivers on direct appeal, and that sworn colloquy statements about satisfaction with counsel carry significant weight against later declarations about off-record conversations.
The decision also provides practical guidance on sentencing procedure: a district court's obligation to consider the § 5E1.2(d) fine factors does not require factor-by-factor findings on the record, and the oral pronouncement requirement for supervised release conditions can be met by incorporating courtwide or judge-specific standing orders by reference during the hearing.