United States v. Castro, Jr.

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 17 2026 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-2702 D.C. No.

Plaintiff - Appellee, 2:23-cr-01527-SMM-1 v.

MEMORANDUM*

ISRAEL CASTRO, Jr.,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding

Argued and Submitted March 31, 2025 Submission Vacated May 6, 2025 Resubmitted August 13, 2026 Phoenix, Arizona

Before: HAWKINS, FISHER, and R. NELSON, Circuit Judges.** Defendant-Appellant Israel Castro appeals his criminal conviction. Castro knowing and voluntarily signed a plea agreement, in which he waived his right to

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The Honorable D. Michael Fisher, United States Circuit Judge for the Court of Appeals, 3rd Circuit, sitting by designation.

file an appeal as to any aspect of his sentence. We dismiss the appeal.1 We have jurisdiction to determine whether we have jurisdiction, including to review de novo whether a criminal defendant has waived his right to appeal by executing a plea agreement, and whether such waiver is valid. United States v. Ventre, 338 F.3d 1047, 1051 (9th Cir. 2003). The right to appeal a criminal conviction is statutory and may be waived. United States v. Portillo-Cano, 192 F.3d 1246, 1249 (9th Cir. 1999). Although we “retain jurisdiction over an appeal by a defendant who has signed an appellate waiver,” we will not “ordinarily exercise that jurisdiction to review the merits.” United States v. Torres, 828 F.3d 1113, 1124 (9th Cir. 2016). We “enforce an appeal waiver contained in a plea agreement if the language of the waiver encompasses the defendant’s right to appeal on the grounds raised, and if the waiver was knowingly and voluntarily made.” Id. (cleaned up). The exceptions are few, and the Supreme Court recently held in Hunter v. United States that an appeal waiver “is unenforceable when it would result in a miscarriage of justice.” 146 S. Ct. 1702, 1713 (2026). This standard “sets a high bar” and a waiver will be set aside “only if the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute.” Id.

1 Castro’s motion to lift the stay of proceedings (Dkt. No. 60) is GRANTED, and the appeal is resubmitted as of the date of this memorandum disposition.

3

There is no dispute that Castro’s appeal falls within the expansive language of his appeal waiver. And he concedes that he agreed to that waiver voluntarily and intelligently. Nonetheless, Castro argues that the district court made two errors that may fall into the examples mentioned in Hunter: (1) it “held [his] nationality against him;” and (2) it failed to utilize the necessary processes when applying some of the guidelines.2 1. The district court did not use Castro’s “nationality against h[i]m” as he claims. The mere fact that the district court mentioned Castro’s nationality as a potential motivating factor in his recruitment does not support Castro’s allegation that the court used it as an aggravating factor. As Castro’s own supplemental brief concedes, it is factually accurate that he was an American citizen. The only additional evidence Castro offers beyond the district court’s passing reference is the fact that the district court subsequently denied the request for a mitigated role adjustment.

But that argument boils down to a claim that the district court got the application wrong. Sentencing guideline determinations are not, themselves, a matter of procedural due process and can accordingly be waived. United States v.

2 In a motion to resubmit his appeal, Castro waives his prior reliance on United States v. Atherton, 106 F.4th 888 (9th Cir. 2024), reh’g en banc granted, opinion vacated, 134 F.4th 1009 (9th Cir. 2025), which remains pending. On resubmission, Castro contends that Hunter alone provides a proper basis to decide his appeal.

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Medina-Carrasco, 815 F.3d 457, 462 (9th Cir. 2016). Without more, a mere mention of nationality combined with a disagreement over the district court’s application of the guidelines does not show a “constitutionally impermissible factor” that would taint the sentence, as described by Hunter. 146 S. Ct. at 1714.

2. Also lacking merit are Castro’s arguments that the district court failed “to utilize the three-step process to evaluate whether [he] should qualify for a . . . mitigated role enhancement” and “to identify the relevant ‘participants’ in the scheme” and “apply” the § 3B1.2 commentary’s “five factors to analyze what role [he] played.”

Section 3B1.2 provides that a reduction is appropriate where a defendant “plays a part in committing the offense that makes him substantially less culpable than the average participant in the criminal activity.” U.S.S.G. § 3B1.2, cmt. n.3(A). The first step of this analysis necessarily demands that the district court “identify all of the individuals for whom there is sufficient evidence of their existence and participation in the overall scheme.” United States v. Dominguez-Caicedo, 40 F.4th 938, 960 (9th Cir. 2022) (cleaned up). And while it is true that the district court did not explicitly discuss the other participants, there is a background presumption that the district courts “know the law and understand their obligation to consider all of the sentencing factors.” United States v. Klensch, 87 F.4th 1159, 1164 (9th Cir. 2023) (cleaned up). As a result, district courts are not obligated to “tick off

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sentencing factors to show that they considered them” or “mechanically analyze each factor or reference them verbatim on the record.” Id. (cleaned up).

Because the district court did not expressly conduct the first step of the Dominguez Caicedo test, Castro argues that it also failed to accurately characterize the culpability of the “average” participant in the scheme at issue using the five factors listed in an application note to U.S.S.G. § 3B1.2. That does not follow; the court was not required to expressly list each factor. Kelnsch, 87 F.4th at 1164 (quotation omitted). The district court’s failure to do so did not deprive Castro the requisite “minimum of civilized procedure.” Hunter. 146 S. Ct. at 1714.3 APPEAL DISMISSED.4

3 Castro claims that there “was much confusion of facts” at his sentencing, although he concedes “the judge’s ultimate reliance on those erroneous facts was never positively confirmed.” Confusion surrounding ambiguous facts is not the kind of “obvious,” rather than “uncertain,” error that can meet the high bar set in Hunter. 146 S. Ct. at 1713–14; see also United States v. Hill, 915 F.3d 669, 674–75 (9th Cir. 2019). 4 Castro’s motion to Supplement or Correct the Record (Dkt. No. 39) is GRANTED.