United States of America v. RAMIN BIBIAN, AKA Ray Fray, AKA Tova Godsi, AKA Arya Jahan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAMIN BIBIAN, AKA Ray Fray, AKA
Tova Godsi, AKA Arya Jahan,
Defendant - Appellant.
No. 14-10054
D.C. No. 3:12-cr-00617-RS-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted March 12, 2015
San Francisco, California
Before: BERZON, BYBEE, and OWENS, Circuit Judges.
Ramin Bibian pleaded guilty to knowingly transferring false identification
documents in violation of 18 U.S.C. § 1028. Bibian appeals from the district
court’s order denying his motion to strike or reform his plea agreement. Because
FILED
MAR 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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we conclude that Bibian knowingly and voluntarily waived his right to appeal, we
dismiss for lack of jurisdiction.
Bibian argues that his appellate waiver was unknowing, and is thus
unenforceable, because, he contends, the criminal forfeiture amount in his plea
agreement is ambiguous and resulted from the parties’ mutual mistake. He points
out that paragraph 11 of his plea agreement specifies criminal earnings of $1.9
million and a forfeiture amount of $1.9 million, while paragraph 2 indicates a
range of criminal earnings between $1 million and $1.9 million. He argues that he
did not intend to consent to the $1.9 million forfeiture judgment that the district
court entered.
We will enforce a defendant’s appellate waiver in his plea agreement if “(1)
the language of the waiver encompasses his right to appeal on the grounds raised,
and (2) the waiver is knowingly and voluntarily made.” United States v. Rahman,
642 F.3d 1257, 1259 (9th Cir. 2011) (citation and internal quotation marks
omitted). However, we have held that a waiver of the right to appeal a restitution
order is not knowing and voluntary where the plea agreement is “ambiguous
regarding the amount of restitution.” United States v. Phillips, 174 F.3d 1074,
1076 (9th Cir. 1999).

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Bibian’s plea agreement was by no means a model of clarity. However,
paragraph 11 included a fixed forfeiture amount of $1.9 million, and that forfeiture
amount was not rendered ambiguous by Bibian’s admission in paragraph 2 that he
earned between $1 million and $1.9 million through his criminal dealings. The
cases in which we have refused to enforce appellate waivers due to ambiguity
regarding the amount of restitution have involved plea agreements that did not
include a fixed restitution amount. See United States v. Tsosie, 639 F.3d 1213,
1218 (9th Cir. 2011); United States v. Gordon, 393 F.3d 1044, 1050 (9th Cir.
2004); Phillips, 174 F.3d at 1076. Because Bibian’s plea agreement
unambiguously set forth a fixed forfeiture amount, Bibian’s appellate waiver is
enforceable.
Furthermore, even if we were to invalidate Bibian’s appellate waiver based
on the ambiguity between the two earnings statements, we would affirm the district
court’s denial of Bibian’s motion to strike or reform his plea agreement as to the
forfeiture provision. A court may not reform a plea agreement or other contract on
the basis of mutual mistake absent clear and convincing evidence of such mistake.
See United States v. Anglin, 215 F.3d 1064, 1067 (9th Cir. 2000); 20th Century Ins.
Co. v. Liberty Mut. Ins. Co., 965 F.2d 747, 759 n.12 (9th Cir. 1992). Here, even if
there were evidence that Bibian mistakenly agreed to the $1.9 million forfeiture
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amount, there is no evidence that the government agreed to that amount by
mistake, or took advantage of Bibian’s unilateral mistake. See Bonaparte v.
Allstate Ins. Co., 49 F.3d 486, 488 (9th Cir. 1994) (unilateral mistake not known or
suspected by the other party is not a basis for reformation). The only evidence in
support of Bibian’s mutual mistake argument does not come close to meeting the
clear and convincing evidence standard. See Anglin, 215 F.3d at 1067. Bibian
argues that due to eleventh hour negotiations and revisions, the parties
inadvertently removed the range of potential criminal earnings from paragraph 11
of the plea agreement, but it is just as likely that the parties inadvertently neglected
to remove the range from paragraph 2. The district court therefore did not clearly
err in finding 1 there was no mutual mistake.
Bibian also argues that the district court should have struck the plea
agreement’s $1.9 million forfeiture amount because he did not knowingly agree to
that amount, even if the government did. Bibian suggests that this is an alternative
argument for which he sought an “alternate form of relief.” However, positing that
he unknowingly agreed to the forfeiture amount is merely another way of saying
that he mistakenly agreed to it, see United States v. Greer, 640 F.3d 1011, 1020
1 Contrary to Bibian’s assertion, the district court did make a finding of fact
that there was no “‘mutual mistake’” after weighing “evidence from both parties.”
(emphasis added).
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(9th Cir. 2011) (approving instruction that an act is knowing if not done by
mistake); and requesting that a court strike language from an agreement is merely
another way of seeking contract reformation, see Pac. Metal Co. v. Joslin, 359
F.2d 396, 397 (9th Cir. 1966) (affirming district court’s refusal to reform contract
by striking language). Even if Bibian unknowingly agreed to the $1.9 million
forfeiture amount, a court may not reform his plea agreement by striking the
forfeiture provision. See Bonaparte, 49 F.3d at 488; United States v. Partida-
Parra, 859 F.2d 629, 633 (9th Cir. 1988) (“We have found no authority that
empowers the court to abrogate a plea agreement to relieve one party of its own
mistake.”).
We note that where a defendant’s guilty plea is accepted, he may withdraw it
prior to sentencing for any “fair and just reason.” Fed. R. Crim. P. 11(d)(2). Here,
however, when the district court offered Bibian the opportunity to withdraw his
plea, he declined to do so. He contends that withdrawing his plea would have
resulted in detrimental consequences, but his motive or rationale for choosing not
to withdraw is irrelevant. He declined to take advantage of a remedy that was
available to him and is not entitled to the remedy he seeks.
APPEAL DISMISSED.
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