United States v. Erica Pena

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 6, 2022
• Docket: 21-50152
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 6 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50152

Plaintiff-Appellee, D.C. Nos. 3:20-cr-02340-LAB-1 v. 3:20-cr-02340-LAB

ERICA RENEE PENA, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted April 4, 2022** Pasadena, California

Before: SCHROEDER, S.R. THOMAS, and BEA, Circuit Judges.

Erica Pena appeals from her sentence for importing methamphetamine in

violation of 21 U.S.C. §§ 952, 960. Pena pleaded guilty to importing

approximately 75 grams of methamphetamine pursuant to a plea agreement that

* 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). contained an appeal waiver. We have jurisdiction under 28 U.S.C. § 1291.

Because the parties are familiar with the facts, we need not recount them here.1

The government claims this appeal is barred by the appeal waiver. Pena

implicitly argues the appeal is not barred because she contends the government

breached the plea agreement. See United States v. Hernandez-Castro, 814 F.3d

1044, 1045 (9th Cir. 2016) (“A defendant is released from his or her appeal waiver

if the government breaches the plea agreement.”).

Pena claims the government breached the plea agreement by failing to

defend a two-level downward variance for waiving the indictment during the

COVID judicial emergency when the prosecutor agreed with the sentencing judge

that Pena’s waiver of the indictment was “taken into consideration” by the four-

level fast-track departure. We disagree.

The sentencing judge asked the prosecutor whether the waiver of the

indictment had been taken into account by the “four point off for Fast Track,” not

whether any such waiver was preclusively contemplated by the Fast Track

departure. Thus the government’s agreement was an “honest response . . . to direct

judicial inquiry,” which does not constitute breach. United States v. Allen, 434

1 We grant Pena’s motion (Dkt. 6) and take judicial notice of the sentencing transcript she submits. See Reyn’s Pasta Bella, LLC v.Visa USA, Inc., 442 F.3d 741, 746 (9th Cir. 2006). 2 F.3d 1166, 1175 (9th Cir. 2006) (quoting United States v. Maldonado, 215 F.3d

1046, 1052 (9th Cir. 2000)). Furthermore, “[w]hen the government agrees to a

sentence pursuant to a plea bargain, it need not explain its reasons nor make the

recommendation enthusiastically.” Maldonado, 215 F.3d at 1051–52. The

prosecutor advocated for a sentence of time-served, which encompassed the 2-level

COVID variance. That Pena wishes the prosecutor would have argued more

persuasively or better explained the reason for the 2-level COVID variance does

not constitute breach.

Because the government did not breach the plea agreement, we are bound to

enforce Pena’s appeal waiver. See Hernandez-Castro, 814 F.3d at 1046.

DISMISSED.