United States v. Quepons

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 25, 2025
• Docket: 23-1781
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 25 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-1781 D.C. No. Plaintiff - Appellee, 3:22-cr-00022-JMK-MMS-3 v. MEMORANDUM* FABIAN QUEPONS,

Defendant - Appellant.

Appeal from the United States District Court for the District of Alaska Joshua M. Kindred, District Judge, Presiding

Submitted September 17, 2025**

Before: SILVERMAN, OWENS, and BRESS, Circuit Judges.

Fabian Quepons appeals from the district court’s judgment and challenges

the 108-month sentence imposed following his guilty-plea conviction for

conspiracy to distribute controlled substances, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B), and 846, and being a felon in possession of a firearm, in

* 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). violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

Quepons contends that he is entitled to resentencing because the government

breached the plea agreement by directing the district court to an earlier version of

the agreement. We review this claim for plain error because Quepons did not raise

it in the district court. See United States v. Whitney, 673 F.3d 965, 970 (9th Cir.

2012). To establish plain error, a defendant must show “(1) error; (2) that was

plain; (3) that affected substantial rights; and (4) that seriously affected the

fairness, integrity, or public reputation of the judicial proceedings.” Id. (internal

quotation marks omitted).

As the government concedes, the district court erred when it referenced the

original version of the plea agreement, which included some facts that were

omitted in the final version. Quepons has not shown, however, that this error

affected his substantial rights or seriously affected the fairness of his sentencing.

Contrary to Quepons’s argument, the Guidelines calculation was supported by the

facts contained in the amended plea agreement, which reflected Quepons’s receipt

of “packages” of methamphetamine and heroin over the course of a monthslong

conspiracy that was trafficking in quantities of methamphetamine and heroin that

exceeded 500 grams or more of methamphetamine and 1 kilogram or more of

heroin. See generally United States v. Culps, 300 F.3d 1069, 1076 (9th Cir. 2002)

2 23-1781 (where the amount of drugs seized does not reflect the scale of the offense, the

district court may approximate total drug quantity by a preponderance of the

evidence). Moreover, Quepons’s assertion that the court “likely imposed a higher

sentence” because it considered the facts omitted from the amended plea

agreement is not supported by the record; the court did not reference those facts in

explaining its reasons for the sentence, and it imposed a sentence 32 months below

the Guidelines range. On this record, Quepons has not shown that the district

court’s error affected his substantial rights, see Whitney, 673 F.3d. at 972 (to show

an effect on substantial rights, defendant must show a “reasonable probability” that

the error affected the sentence), or that the error “seriously affected the fairness” of

his sentencing, see id. at 970.

AFFIRMED.

3 23-1781