United States v. Gongora

• Decision Date: 03 June 2022
• Docket Number: 21-10276
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HECTOR KIONI GONGORA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
HECTOR KIONI GONGORA, Defendant-Appellant.

No. 21-10276

United States Court of Appeals, Ninth Circuit

June 3, 2022

NOT FOR PUBLICATION

Argued and Submitted May 10, 2022 San Francisco, California

Appeal from the United States District Court for the Eastern District of California D.C. Nos. 1:21-cr-00044-DAD-BAM-1, 1:21-cr-00044-DAD-BAM, Dale A. Drozd, District Judge, Presiding

Before: O'SCANNLAIN and BUMATAY, Circuit Judges, and BAKER, ^[*] International Trade Judge.

MEMORANDUM ^[**]

Hector Gongora appeals his sentences for possession with intent to distribute methamphetamine, being a felon in possession of a firearm, and being a felon in possession of ammunition. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1). He first

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argues that his change-of-plea and sentencing hearings were improperly held over video and teleconference. He also claims that the district court improperly applied the firearm sentencing enhancement under U.S. Sentencing Guidelines § 2D1.1(b)(1). Because Gongora did not previously object to either ruling of the district court, we review for plain error. See United States v. Grimaldo, 993 F.3d 1077, 1081 (9th Cir. 2021). To prevail, Gongora must establish that (1) a clear or obvious (2) error (3) affected his substantial rights and (4) seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Johnson, 979 F.3d 632, 636 (9th Cir. 2020). We have jurisdiction to review under 28 U.S.C. § 1291 and affirm.

1. Gongora objects to the use of video and teleconference for his change-of-plea and sentencing proceedings because the district court failed to make the requisite showings under the Coronavirus Aid, Relief, and Economic Securities Act ("CARES Act"), § 15002(b)(2)(A), (b)(4). To show prejudice, Gongora must either show a "reasonable probability" that he would not have entered a guilty plea but for the error, United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015), or that the error affected the outcome of his sentencing, United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005).

Gongora has not shown any prejudice from the use of video and teleconference during his change-of-plea hearing. At the hearing, Gongora was

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asked if he wished to waive his right to appear in person and affirmed that he did. Gongora's counsel also advised that he was prepared to proceed by video and teleconference. As the...