United States v. Gabriel Aguilar Gonzalez

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 12, 2021
• Docket: 20-30271
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30271

Plaintiff-Appellee, D.C. No. 2:20-cr-00021-TOR-1

v. MEMORANDUM* GABRIEL AGUILAR GONZALEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding

Submitted November 8, 2021**

Before: CANBY, TASHIMA, and MILLER, Circuit Judges.

Gabriel Aguilar Gonzalez appeals from the district court’s judgment and

challenges the 120-month sentence imposed following his guilty-plea conviction

for conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841,

846. We dismiss.

* 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). Aguilar Gonzalez contends that his sentence is substantively unreasonable.

The government asserts that this claim is encompassed by the appeal waiver in the

parties’ plea agreement. We agree. Aguilar Gonzalez nevertheless maintains that

the waiver does not bar his challenge to his sentence because the district court

failed to reiterate all of the waiver’s terms at the sentencing hearing. However,

Federal Rule of Criminal Procedure 11(b)(1)(N) requires that this advisement

occur at the change of plea hearing, as it did here. The district court has no similar

obligation at sentencing. While a statement by the court at sentencing that

“unequivocally, clearly, and without qualification” conveys that the defendant has

a right to appeal is sufficient to vitiate the waiver, United States v. Arias-Espinosa,

704 F.3d 616, 620 (9th Cir. 2012), the court did not make such a statement here.

To the contrary, it reminded Aguilar Gonzalez that he had waived his right to

appeal. Accordingly, we enforce the waiver and dismiss Aguilar Gonzalez’s

appeal.

DISMISSED.

2 20-30271