United States v. Asuncion

146 F. App'x 915

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 24, 2005
• Docket: No. 04-10593
• Status: Published

Opinion

MEMORANDUM

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Asuncion appeals the district court’s decision denying his motion to suppress. We affirm, and deny his request for a limited remand for resentencing.

Counsel for the defendant failed to make a motion to suppress at the time specified by the magistrate judge and, instead, many months later filed a belated request for an extension of time only a few days before the scheduled trial date. Counsel offered no plausible explanation for his failure to comply with the rules. Assuming that the court should have ruled on the merits of the suppression motion, its failure to do so was harmless because it would have been required to deny the motion as a matter of law. See United States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir.2002); see also United States v. Howell, 231 F.3d 615, 620-21 (9th Cir.2000).

Under the terms of his plea agreement, Asuncion waived the right to appeal his sentence. Therefore, he is not entitled to a limited remand for resentencing under United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). See United States v. Cortez-Arias, 425 F.3d 547 (2005) (holding that a waiver of the right to appeal bars an Ameline remand).

Accordingly, the judgment of the district court is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.