UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-30266

Plaintiff-Appellee, D.C. No. 6:18-cr- 00351-AA-1 v. KEITH ATHERTON, AKA Keith OPINION James Atherton, AKA John Doe,

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted December 8, 2023 Portland, Oregon

Filed July 3, 2024 Before: Marsha S. Berzon, Jacqueline H. Nguyen, and Eric D. Miller, Circuit Judges.

Opinion by Judge Berzon; Dissent by Judge Miller 2 USA V. ATHERTON

SUMMARY *

Criminal Law

The panel affirmed a sentence imposed on Keith Atherton, whose plea agreement contained an appeal waiver with certain exceptions. Atherton contends that the district court violated his due process rights during sentencing by relying upon false or unreliable information. The panel held that a due process challenge to sentencing, like Atherton’s, falls within the appeal waiver limitation set forth identified in United States v. Wells, 29 F.4th 580 (9th Cir. 2022), for “a challenge that the sentence violates the Constitution.” The panel rejected the government’s contention that the Wells exception is limited to constitutional claims targeting the substantive terms of the sentence. Reviewing for plain error, the panel held that Atherton’s due process rights were not violated. The panel concluded that Atherton did not demonstrate that it is clear or obvious that the challenged information was patently false or unreliable or that the court relied upon the information in imposing sentence. Dissenting, Judge Miller would hold Atherton to his agreement and dismiss the appeal. Judge Miller wrote that the phrase “any grounds” in Atherton’s appeal waiver encompasses alleged due-process violations at sentencing; * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. ATHERTON 3

and that under the rule adopted by the majority, routine challenges to factual findings at sentencing can be recast as due-process arguments that can go forward in the face of an appellate waiver, at least if the waiver does not contain a sufficiently explicit reference to due-process claims.

COUNSEL Sarah Barr (argued), Assistant United States Attorney; Suzanne Miles, Assistant United States Attorney, Criminal Appeals Section Chief; Natalie K. Wight, United States Attorney, United States Department of Justice, Office of the United States Attorney, Portland, Oregon; Jeffrey S. Sweet, Assistant United States Attorney, United States Department of Justice, Office of the United States Attorney, Eugene, Oregon; for Plaintiff-Appellee. Elizabeth G. Daily (argued), Assistant Federal Public Defender, Federal Public Defender’s Office, Portland Oregon, for Defendant-Appellant. 4 USA V. ATHERTON

OPINION BERZON, Circuit Judge:

Defendant Keith Atherton pleaded guilty pursuant to a plea agreement to one count of using or attempting to use a minor to produce a visual depiction of sexually explicit conduct. In the plea agreement, Atherton waived his appeal rights, with certain exceptions. The district court imposed a statutory maximum sentence of 30 years. On appeal, Atherton contends that the district court violated his due process rights during sentencing by relying upon false or unreliable information. Our primary question is whether a due process challenge to sentencing, like Atherton’s, falls within the appeal waiver limitation identified in United States v. Wells for “