United States v. Jesus Raul-Cruz

469 F. App'x 533

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2012
• Docket: 11-30002, 11-30037
• Status: Unpublished

Opinion

MEMORANDUM **

In these related appeals, Jesus Raul-Cruz and Victor Copado appeal from the respective 87-month and 100-month sentences imposed following their guilty-plea convictions for conspiracy to distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdiction under 28 U.S.C. § 1291. In No. 11-30002, we dismiss in light of a valid appeal waiver. In No. 11-30037, we affirm.

In No. 11-30002, Raul-Cruz’s valid appeal waiver bars this appeal challenging the district court’s imposition of a sentencing enhancement for possession of a firearm. See United States v. Joyce, 357 F.3d 921, 922 (9th Cir.2004). We decline to consider Raul-Cruz’s contention, raised for the first time in his reply brief, that he is entitled to an exception to the waiver. See United States v. Rearden, 349 F.3d 608, 614 n. 2 (9th Cir.2003).

In No. 11-30037, Copado contends that the district court erred by imposing a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm. This contention fails because the district court adequately found that the possession of firearms by co-conspirators was reasonably foreseeable to Copado, see United States v. Benford, 574 F.3d 1228, 1234 (9th Cir.2009), and this finding was not clearly erroneous in light of the nature of the conspiracy and the ample evidence of firearm possession. See United States v. Garcia, 909 F.2d 1346, 1349-50 (9th Cir.1990).

No. 11-30002: DISMISSED.

No. 11-30037: AFFIRMED.

** This disposition is not appropriate * for publication and is not precedent except as provided by 9th Cir. R. 36-3.