United States v. Jose Benavides Cristerna

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2019
• Docket: 15-10315
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-10315

Plaintiff-Appellee, D.C. No. 2:14-cr-00903-SPL-1 v.

JOSE ANGEL BENAVIDES CRISTERNA, MEMORANDUM* AKA Jose Benavides,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Argued and Submitted February 5, 2019 Phoenix, Arizona

Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.

Jose Benavides Cristerna received a 108-month sentence after pleading guilty

to conspiracy to possess heroin with intent to distribute, 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B), and 846, and conspiracy to commit money laundering, 18 U.S.C.

§§ 1956(a)(1)(B)(I) and 1956(h). We have jurisdiction of his appeal under 28 U.S.C.

§ 1291. Because Benavides entered into a plea agreement with a valid appellate

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. waiver, we dismiss the appeal.

1. The sentencing judge confirmed that Benavides understood he had waived

his right to appeal. The judge’s later admonition—that if Benavides nonetheless

believed he still had a right to appeal, a notice of appeal must be filed timely—did

not vitiate that waiver. Cf. United States v. Felix, 561 F.3d 1036, 1041 (9th Cir.

2009) (finding no waiver despite plea agreement when sentencing judge twice told

defendant unequivocally that he had right to appeal).

2. Nor did any violations of Federal Rule of Criminal Procedure 11 in the

plea colloquy vitiate the plea agreement and appellate waiver. See United States v.

Bibler, 495 F.3d 621, 624 (9th Cir. 2007). Because Benavides did not object to the

Rule 11 colloquy, we review for plain error. United States v. Dominguez Benitez,

542 U.S. 74, 76 (2004). A defendant alleging plain Rule 11 error must establish “a

reasonable probability that, but for the error, he would not have entered the plea.”

Id. at 83; United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015). But,

Benavides does not contend that the challenged omissions in the plea colloquy (at

least one of which the government agrees violated Rule 11) in any way impacted his

decision to plead guilty.1 Cf. United States v. Monzon, 429 F.3d 1268, 1272–74 (9th

1 Although Benavides claimed at sentencing that he expected a sentence of eight years or less, the colloquy (and the judge’s questioning of counsel at sentencing) made plain that there was no such agreement and that Benavides understood he faced a maximum sentence well in excess of eight years.

2 Cir. 2005).

3. Benavides’ appellate waiver included an express exception for claims of

ineffective assistance of counsel. We decline to consider those claims on direct

appeal, because the record is not sufficiently developed. United States v. Andrews,

75 F.3d 552, 557 (9th Cir. 1996). Benavides may “pursue the issue in district court

collateral proceedings.” United States v. Rahman, 642 F.3d 1257, 1260 (9th Cir.

2011).

4. Benavides’ attacks on his sentence are barred by the appellate waiver. The

sentencing judge’s statements about “ballistic vests” and “stash houses” were not

demonstrably the basis for the sentence and therefore did not violate due process,

even assuming they were inaccurate. See United States v. McGowan, 668 F.3d 601,

606 (9th Cir. 2012). The sentence imposed was the lowest point of the range

recommended by the presentencing report, and Benavides does not argue that there

was false information in that report. See United States v. Hill, No. 17-35719, slip

op. at 13–14 (9th Cir. Feb. 7, 2019).

APPEAL DISMISSED.