Petition for Writ of Certiorari — Juan Viana-Hernandez, Petitioner v. United States

APPENDIX

United States v. Viana-Hernandez, Not Reported in Fed. Rptr. (2025)

2025 WL 2673907

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United States Court of Appeals, Ninth Circuit.

UNITED STATES of

America, Plaintiff - Appellant,

V.

Juan VIANA-HERNANDEZ,

Defendant - Appellee.

No. 24-3084

|

FILED SEPTEMBER 18, 2025

|

Argued and Submitted August

19, 2025 Pasadena, California

Appeal from the United States District Court for

the Southern District of California, Larry A. Burns,

District Judge, Presiding, D.C. No. 3:23-cr-02135-

LL-1

Attorneys and Law Firms

Daniel Earl Zipp Assistant U.S. Attorney, Jennifer

McCollough, Special Assistant U.S. Attorney, Laura

Dawn Berumen, DOJ - Office of the U.S. Attorney, San

Diego, CA, for Plaintiff - Appellant.

Todd William Burns, Burns & Cohan, Attorneys at

Law, San Diego, CA, Robert C. Schlein, Robert C.

Schlein & Associates, San Diego, CA, for Defendant

- Appellee.

Before: HIGGINSON, BENNETT, and SUNG,

Circuit Judges.

MEMORANDUM

*1 The Government appeals the district court's

order dismissing the charge against Defendant Juan

Viana-Hermandez with prejudice, after previously

allowing Viana-Hernandez to withdraw his guilty

plea. The district court stated it dismissed Viana-

Hernandez's case under its supervisory authority

because it concluded that the Bureau of Prisons (BOP)

improperly undermined the imposition of its lawful

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sentence. We have jurisdiction under 28 U.S.C. § 1291.

We reverse and reinstate Viana-Hernandez's judgment

and sentence.

1. This case is not moot. “For a dispute to remain live

without being dismissed as moot, ‘[t]he parties must

continue to have a personal stake in the outcome of the

lawsuit.’ ” Maldonado v. Lynch, 786 F.3d 1155, 1160—

61 (9th Cir. 2015) (alteration in original) (quoting

Lewis v. Cont'l Bank Corp., 494 U.S. 472, 478 (1990)).

The Government has a live interest in this case: the

reinstatement of Viana-Hernandez's guilty plea and

sentence. See Garding v. Mont. Dep't of Corrs., 105

F.4th 1247, 1255-56 (9th Cir. 2024) (discussing how

the state had an interest in a vacated judgment to avoid

a new trial).

2. The Government did not waive its objection

to the district court dismissing the charge against

Viana-Hernandez. The Government argued against the

dismissal. At the April 22, 2024, order to show cause

hearing, the district court noted “I've considered an

order to show cause why somebody shouldn't be held

in contempt. I think the best and most direct and

probably least offensive response to this is just to

dismiss the case. The Government wants to appeal,

have at it.” “[W aiver is the ‘intentional relinquishment

or abandonment of a known right.’ ” United States v.

Olano, 507 U.S. 725, 733 (1993) (quoting Johnson

v. Zerbst, 304 U.S. 458, 464 (1938)). Looking at the

entirety of the record and the district court transcripts,

the Government did not waive its objection.

3. A district court's use of its supervisory powers

is reviewed for abuse of discretion. United States v.

Simpson, 813 F.2d 1462, 1465 (9th Cir. 1987). The

district court abused its discretion by allowing Viana-

Hernandez to withdraw his plea and then dismissing

the charge against him. “We have accepted that ‘[alll

federal courts are vested with inherent powers enabling

them to manage their cases and courtrooms effectively

and to ensure obedience to their orders.’ ” United

States v. W.R. Grace, 526 F.3d 499, 509 (9th Cir.

2008) (en banc) (quoting Aloe Vera of Am., Inc. v.

United States, 376 F.3d 960, 964-65 (9th Cir. 2004)

(per curiam)). The Supreme Court has suggested

that a district court should invoke its supervisory

authority in limited circumstances such as “to preserve

judicial integrity by ensuring that a conviction rests

United States v. Viana-Hernandez, Not Reported in Fed. Rptr. (2025)

on appropriate considerations” or “to deter illegal

conduct.” United States v. Hasting, 461 U.S. 499, 505

(1983).

“Whatever the scope of” the district court's “ ‘inherent

power,’ however, it does not include the power to

develop rules that circumvent or conflict with the

Federal Rules of Criminal Procedure.” Carlisle v.

United States, 517 U.S. 416, 426 (1996). Federal

Rule of Criminal Procedure (Rule) 11(e) requires that

“Ta]fter the court imposes sentence, the defendant may

not withdraw a plea of guilty or nolo contendere, and

the plea may be set aside only on direct appeal or

collateral attack.” The set-aside did not occur on either

direct appeal or collateral attack. The district court thus

violated Rule 11(e).

*2 The district court based its dismissal on the BOP's

conduct. But here, the BOP expressed staffing and

safety concerns at the Metropolitan Correction Center

San Diego with letting Viana-Hernandez enter and

exit the facility every weekend. The BOP offered

placements in other facilities. While the district court

may make recommendations, the BOP has “plenary

control” over the location of confinement. Japia v.

United States, 564 U.S. 319, 331 (2011). Although the

district court found that the BOP's alternatives were

unreasonable, the BOP's actions were not improper,

much less outrageous, and did not justify either

allowing Viana-Hernandez to withdraw his plea or

dismissing the charge against Viana-Hernandez. See

United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir.

1985) (‘Proper regard for judicial integrity does not

justify a ‘ “chancellor's foot” veto’ over activities of

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coequal branches of government.” (quoting United

States v. Russell, 411 U.S. 423, 435 (1973))).

The district court was concerned that the BOP's

alternate locations would effectively undermine its

sentence of intermittent confinement. But there were

other means available to the parties, and to the

district court, to address changes in circumstance

that may have permitted modifications to Viana-

Hernandez's sentence or to the terms of his probation.

For example, the district court, under Rule 36, could

have corrected an error in the judgment. Alternatively,

Viana-Hernandez (or the Government) could have

moved to modify the terms of Viana-Hernandez's

probation under Rule 32.1(c). Following the issuance

of our mandate, the district court may find that

conditions have changed, and/or other bases exist

for exercising its discretion to modify the sentence,

including through Rule 32.1(c) or Rule 36, and

including based on the possible lack of an appropriate

facility for intermittent confinement.

The district court abused its discretion under the

Rules and the limits of its supervisory authority by

dismissing the Government's charge against Viana-

Hernandez after permitting him to withdraw his guilty

plea.

REVERSED AND REMANDED. _Viana-

Hernandez's judgment and_ sentence are

REINSTATED.

All Citations

Not Reported in Fed. Rptr., 2025 WL 2673907

* The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the 5th

Circuit, sitting by designation.

kk

Rule 36-3.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit

End of Document

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