United States v. Alberto Diaz

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2019
• Docket: 17-50300
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50300

Plaintiff-Appellee, D.C. No. 2:16-cr-00866-SVW-1 v.

ALBERTO HERNANDEZ DIAZ, AKA MEMORANDUM* Jesus Garcia, AKA Jesus Garcia-Dias, AKA Alberto Hernandez, AKA Pedro Lebrano, AKA Jesus Escalante Rabiela, AKA Arturo Ramirez, AKA Esiquin Roman, AKA Martina Roman,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Submitted March 7, 2019** Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and SETTLE,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Benjamin H. Settle, United States District Judge for the Western District of Washington, sitting by designation. Alberto Hernandez Diaz pled guilty to violations of 8 U.S.C. § 1326(a),

(b)(2) for being a previously removed noncitizen found illegally in the United

States. Because the parties are familiar with the facts, we do not recount them

here. Although Hernandez Diaz’s plea agreement included a limited waiver of his

right to appeal his sentence, it does not preclude our review. The waiver’s narrow

language does not expressly encompass the issues raised, see United States v.

Jeronimo, 398 F.3d 1149, 1152-53 (9th Cir. 2005), overruled on other grounds by

United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc), and

ambiguity must be construed in Hernandez Diaz’s favor, see United States v. Cope,

527 F.3d 944, 949-50 (9th Cir. 2008). We therefore have jurisdiction under 28

U.S.C. § 1291, and we affirm.

1. Hernandez Diaz argues that the district court abused its discretion in

rejecting the Federal Rule of Criminal Procedure 11(c)(1)(C) agreement, which

stipulated to a 27-month sentence. We review a district court’s rejection of a plea

agreement for abuse of discretion. See In re Morgan, 506 F.3d 705, 708 (9th Cir.

2007).

The district court made a sufficiently individualized determination. The

court waited to review Hernandez Diaz’s complete pre-sentence report (“PSR”)

before deciding whether to accept the agreement. Id. at 711-12. After “read[ing]

the report and the pleadings,” it rejected the agreement on the record, explaining

2 that the proposed sentence was too lenient. Based on the PSR’s recommendation

and Hernandez Diaz’s extensive criminal and deportation history, this conclusion

was reasonable. Id. (explaining that “Rule 11 vests district courts with

considerable discretion to assess the wisdom of plea bargains”). We see no abuse

of discretion here.

2. Hernandez Diaz also argues that the district court, after rejecting the Rule

11(c)(1)(C) agreement, violated Rule 11(c)(5)’s procedures by failing to

(1) personally ask him whether he wished to withdraw his guilty plea, see Fed. R.

Crim. P. 11(c)(5)(B), and (2) advise him that the disposition could be less

favorable if he did not withdraw his plea, see Fed. R. Crim. P. 11(c)(5)(C).

Because Hernandez Diaz did not object below, we review for plain error. See

United States v. Vonn, 535 U.S. 55, 61-62, 74 (2002).

Whether the district court violated either prong of Rule 11(c)(5) makes no

difference to the outcome here. Hernandez Diaz fails to show any “reasonable

probability that, but for the error, he would not have entered the plea.” United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Hernandez Diaz does not

allege that he misunderstood his right to withdraw his plea or that he might have

done so if the court had better advised him. Moreover, after those alleged errors,

he accepted an amended plea agreement, proposing a sentence that was nearly

three times as long as the initial, rejected agreement. Because this “tends to show

3 that the [alleged] Rule 11 error made no difference to the outcome here,” id. at 85,

we conclude there was no plain error.

AFFIRMED.