United States v. Ivan Tizoc

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 2020
• Docket: 18-50371
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50371

Plaintiff-Appellee, D.C. No. 3:15-cr-01299-GPC-1 v.

IVAN RAMON TIZOC, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted February 12, 2020 Pasadena, California

Before: BERZON, TALLMAN, and R. NELSON, Circuit Judges.

Ivan Tizoc pled guilty to possession and conspiracy to distribute controlled

substances. He now directly appeals his conviction and sentence as a result of the

district court’s decision to defer ruling on Tizoc’s 28 U.S.C. § 2255 petition,

instead vacating and reentering judgment to allow the appeal to proceed pursuant

to United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2005), because

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Tizoc argued that his counsel refused to file an appeal on his behalf. Tizoc raises

two claims on appeal: (1) ineffective assistance of counsel, and (2) government

breach of the plea agreement. We have jurisdiction pursuant to 28 U.S.C. §§ 1291,

1294. We dismiss Tizoc’s claims because the plea agreement precludes direct

appeal and we conclude that there was no breach of the plea agreement.

The plea agreement Tizoc entered into allowed for a “post-conviction

collateral attack based on a claim of ineffective assistance of counsel,” not a right

to direct appeal, unless the court were to impose a sentence above the guideline

range recommended by the government at sentencing. Because Tizoc’s 200-month

sentence was within the guidelines range of 188 to 235 months recommended by

the goverment, Tizoc has waived his right to a direct appeal of the ineffective

assistance of counsel claim. Nor did the prosecutor breach the plea agreement.

The prosecutor adhered to his duty of candor in answering the court’s questions but

honored his promise to recommend a sentence of 188 months notwithstanding the

court’s concerns. See United States v. Maldonado, 215 F.3d 1046, 1051–52 (9th

Cir. 2000).

We therefore dismiss this appeal, but with instructions to the district court

that the other grounds originally raised in Tizoc’s 28 U.S.C. § 2255 petition be

decided on remand. Tizoc should not need to file a second or successive § 2255

petition to raise them because the district court never decided the merits of those

2 claims.

DISMISSED and REMANDED with instructions.