United States v. Noe Hernandez-Vega

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2018
• Docket: 17-50438
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50438

Plaintiff-Appellee, D.C. No. 5:16-cr-00105-JGB-1

v. MEMORANDUM* NOE HERNANDEZ-VEGA, a.k.a. Noe Hernandez Vega, a.k.a. Noe Vega Hernandez, a.k.a. Noe Vega-Hernandez,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Noe Hernandez-Vega appeals from the district court’s judgment and

challenges the 132-month sentence imposed following his guilty-plea conviction

for possession with intent to distribute methamphetamine and aiding and abetting,

* 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). in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2(a). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm in part and vacate and remand

in part.

The government argues that Hernandez-Vega waived the right to appeal his

sentence. We conclude that the waiver is unenforceable because the district court

unambiguously advised Hernandez-Vega that he had the right to appeal. See

United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995).

Hernandez-Vega contends that the district court procedurally erred by failing

to respond to his argument that a lesser sentence was necessary to avoid an

unwarranted disparity with the sentences his co-defendants received. We review

for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 & n.3

(9th Cir. 2010), and conclude that there is none. The record reflects the district

court considered Hernandez-Vega’s disparity argument and was not persuaded that

it warranted a lower sentence. See United States v. Perez-Perez, 512 F.3d 514,

516-17 (9th Cir. 2008).

Hernandez-Vega also argues that this court should remand to the district

court to modify standard conditions five, six, and fourteen, which were held to be

unconstitutionally vague after the district court sentenced Hernandez-Vega. See

United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018), cert. denied, 139

S. Ct. 133 (2018). We remand for the district court to modify these conditions

2 17-50438 consistent with our opinion in Evans.

AFFIRMED in part; VACATED and REMANDED in part with

instructions.

3 17-50438