United States v. Daniel Castaneda-Martinez , 425 F. App'x 569 ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                           MAR 29 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,              )      No. 10-10041
    )
    Plaintiff – Appellee,            )      D.C. No. 2:08-cr-00347-JCM-PAL-3
    )
    v.                               )      MEMORANDUM *
    )
    DANIEL CASTANEDA-                      )
    MARTINEZ,                              )
    )
    Defendant – Appellant.           )
    )
    )
    UNITED STATES OF AMERICA,              )      No. 10-10043
    )
    Plaintiff – Appellee,            )      D.C. No. 2:08-cr-00347-JCM-PAL-2
    )
    v.                               )
    )
    JUAN NUNEZ-ROMERO,                     )
    )
    Defendant – Appellant.           )
    )
    )
    UNITED STATES OF AMERICA,              )      No. 10-10046
    )
    Plaintiff – Appellee,            )      D.C. No. 2:08-cr-00347-JCM-PAL-1
    )
    v.                               )
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. Rule 36-3.
    )
    RAYMUNDO ARIAS-CEJA, AKA               )
    Alejandro Delgadillo, AKA              )
    Armondo Valencia-Chavez,               )
    )
    Defendant – Appellant.           )
    )
    )
    UNITED STATES OF AMERICA,              )       No. 10-10086
    )
    Plaintiff – Appellee,            )       D.C. No. 2:08-cr-00347-JCM-PAL-4
    )
    v.                               )
    )
    JOSE RAMIREZ-ALVAREZ,                  )
    )
    Defendant – Appellant.           )
    )
    )
    Appeal from the United States District Court
    for the District of Nevada
    James C. Mahan, District Judge, Presiding
    Argued and Submitted March 15, 2011 **
    San Francisco, California
    Before:      WALLACE, FERNANDEZ, and CLIFTON, Circuit Judges.
    Daniel Castaneda-Martinez, Raymundo Arias-Ceja, and Juan Carlos Nunez-
    Romero appeal their sentences after their convictions upon guilty pleas to the crime
    **
    United States v. Castaneda-Martinez, United States v. Nunez-Romero, and
    United States v. Arias-Ceja submitted without argument. United States v.
    Ramirez-Alvarez argued and submitted.
    2
    of conspiracy to possess drugs with intent to distribute them. See 
    21 U.S.C. § 846
    .
    Jose Ramirez-Alvarez appeals the district court’s denial of his motion to withdraw
    his guilty plea to the same conspiracy charges. We affirm.
    (1)      Castaneda, Arias and Nunez all assert that the district court erred
    when it denied them a downward adjustment to their offense levels under the
    United States Sentencing Guidelines for their acceptance of responsibility. See
    USSG §3E1.1.1 We disagree. Because the district court “is in a unique position to
    evaluate a defendant’s acceptance of responsibility,” 2 while we do review its
    findings for clear error,3 we accord it “great deference.” 4 The burden of clearly
    demonstrating acceptance of responsibility is upon the defendant,5 and, here, no
    clear demonstration was forthcoming. The defendants did not fall within the “rare
    situations” commentary because they pled before they were actually convicted.
    1
    All references to the Sentencing Guidelines are to the November 1, 2009,
    version.
    2
    USSG §3E1.1, comment. (n.5); see also United States v. Mara, 
    523 F.3d 1036
    , 1038 (9th Cir. 2008).
    3
    See United States v. Alba-Flores, 
    577 F.3d 1104
    , 1107 (9th Cir. 2009).
    4
    USSG §3E1.1, comment. (n.5); see also United States v. Vance, 
    62 F.3d 1152
    , 1157 (9th Cir. 1995).
    5
    See USSG §3E1.1(a); see also United States v. Lopez-Patino, 
    391 F.3d 1034
    , 1038 (9th Cir. 2004).
    3
    See USSG §3E1.1, comment. (n.2). Nor did they fall within the “significant
    evidence of acceptance” commentary because they did not plead “prior to the
    commencement of trial.” Id. at comment. (n.3). What remained was the bare fact
    that they did plead guilty, and their weak statements of apology.6 The district court
    did not err in determining that was not sufficient to carry their burden.
    (2)      Nunez then asserts that he was entitled to a two point downward
    adjustment for his allegedly minor role. See USSG §3B1.2. We disagree. He bore
    the burden of proving that he was entitled to that adjustment,7 and while he might
    well have shown that he was less culpable than certain of the other defendants, the
    district court did not clearly err when it determined that he was not “substantially
    less culpable.”8
    (3)      Nunez also asserts that the sentence imposed upon him was
    unreasonable, even though it was within the calculated guideline range. He asserts
    6
    Incidentally, Castaneda did not even assert error at the district court, so we
    review his claim for plain error. See United States v. Olano, 
    507 U.S. 725
    , 732,
    
    113 S. Ct. 1770
    , 1776, 
    123 L. Ed. 2d 508
     (1993); United States v. Gallegos, 
    613 F.3d 1211
    , 1213–14 (9th Cir. 2010).
    7
    See Ajala v. U.S. Parole Comm’n, 
    997 F.2d 651
    , 656 (9th Cir. 1993).
    8
    See USSG §3B1.2, comment. (n.3(A)); United States v. Rosas, 
    615 F.3d 1058
    , 1067 (9th Cir. 2010); United States v. Cantrell, 
    433 F.3d 1269
    , 1283 (9th
    Cir. 2006).
    4
    procedural error9 based upon the same complaints about the guideline calculations
    that we have disposed of above. He asserts substantive unreasonableness10 solely
    on the basis that a lesser sentence would have been appropriate, but a sentence
    within the guideline range, as his was, is usually reasonable,11 and the facts of this
    case do not require a determination that his sentence fell outside of that normal
    expectation of reasonableness.
    (4)       Castaneda argues that the district court erred when it gave him an
    upward adjustment for reckless endangerment. See USSG §3C1.2. We review for
    plain error,12 because at the district court, far from making that objection, he agreed
    that the presentence report’s recommendation was correct. Castaneda asserts that
    the district court was required to make specific findings of fact, but that is incorrect
    where, as here, no objection was made. See United States v. Ponce, 
    51 F.3d 820
    ,
    826 (9th Cir. 1995); see also United States v. Carter, 
    560 F.3d 1107
    , 1119 (9th Cir.
    2009); United States v. Rigby, 
    896 F.2d 392
    , 394 (9th Cir. 1990). On the facts of
    this case — Castaneda’s ramming an occupied police car with his car — we see no
    9
    See United States v. Carty, 
    520 F.3d 984
    , 993 (9th Cir. 2008) (en banc).
    10
    See 
    id.
    11
    See 
    id. at 994
    .
    12
    See United States v. Waknine, 
    543 F.3d 546
    , 551 (9th Cir. 2008).
    5
    error in the district court’s determination, much less plain error.13 See United
    States v. Reyes-Oseguera, 
    106 F.3d 1481
    , 1483–84 (9th Cir. 1997); United States
    v. Cordova Barajas, 
    360 F.3d 1037
    , 1044 (9th Cir. 2004).
    (5)       Ramirez asserts that the district court abused its discretion 14 when it
    denied his motion to withdraw his guilty plea. It did not. He had the burden of
    demonstrating a “‘fair and just reason’” for his request and he did not do so.15 He
    asserts that the plea colloquy indicates that he did not understand the nature of the
    charges against him. Our review of the transcripts belies that assertion; the district
    court was careful to make sure that he did understand before it accepted his plea.16
    He also argues that the district court erred when taking his plea because it did not
    specifically state that it would consider sentencing factors under 
    18 U.S.C. § 3553
    (a). See Fed. R. Crim. P. 11(b)(1)(M). That objection was not brought to
    13
    We decline to consider Castaneda’s claim that his counsel was ineffective.
    He must raise that claim in a 
    28 U.S.C. § 2255
     proceeding, if at all. See United
    States v. Sager, 
    227 F.3d 1138
    , 1149 (9th Cir. 2000); United States v. Andrews, 
    75 F.3d 552
    , 557 (9th Cir. 1996).
    14
    See United States v. Briggs, 
    623 F.3d 724
    , 727 (9th Cir. 2010).
    15
    
    Id. at 728
     (quoting Fed. R. Crim. P. 11(d)(2)(B)).
    16
    Any suggestion that he did not appreciate the possible length of his
    sentence is otiose. He was clearly told what that possible length was and
    acknowledged that fact. His suggestion that he was not communicating well with
    his counsel is similarly insubstantial where, as here, he has given no indication of
    what that failure actually amounted to.
    6
    the district court’s attention, so we review for plain error. See United States v.
    Benz, 
    472 F.3d 657
    , 658–59 (9th Cir. 2006). The district court did specifically
    explain to him that it had the discretion to impose what it “consider[ed] to be a
    reasonable sentence” and could even exceed the guideline calculation in doing so.
    In light of that, it is doubtful that there was any error at all, and, certainly, none of
    Ramirez’s substantial rights were violated. See Olano, 
    507 U.S. at
    734–35, 
    113 S. Ct. at
    1777–78. He has not shown any fair and just reason to withdraw his plea.
    AFFIRMED.
    7
    

Document Info

Docket Number: 10-10041, 10-10043, 10-10046, 10-10086

Citation Numbers: 425 F. App'x 569

Judges: Clifton, Fernandez, Wallace

Filed Date: 3/29/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023

Authorities (19)

96 Cal. Daily Op. Serv. 753, 96 Daily Journal D.A.R. 1177 ... , 75 F.3d 552 ( 1996 )

UNITED STATES of America, Plaintiff-Appellee, v. Johnny ... , 62 F.3d 1152 ( 1995 )

united-states-v-carlos-tapia-ponce-aka-carlos-perez-ricardo-lopez , 51 F.3d 820 ( 1995 )

United States v. Briggs , 623 F.3d 724 ( 2010 )

United States v. Benjamin Lopez-Patino, A.K.A. Benjamin ... , 391 F.3d 1034 ( 2004 )

United States v. Gallegos , 613 F.3d 1211 ( 2010 )

United States v. Waknine , 543 F.3d 546 ( 2008 )

United States v. Joachim Benz , 472 F.3d 657 ( 2006 )

United States v. Michael Xavier Rigby , 896 F.2d 392 ( 1990 )

United States v. Julius Paul Sager , 227 F.3d 1138 ( 2000 )

united-states-v-newton-james-cantrell-sr-united-states-of-america-v , 433 F.3d 1269 ( 2006 )

United States v. Mara , 523 F.3d 1036 ( 2008 )

Adebola Olumbunm Ajala v. United States Parole Commission , 997 F.2d 651 ( 1993 )

97-cal-daily-op-serv-1089-97-daily-journal-dar-1623-united-states-of , 106 F.3d 1481 ( 1997 )

United States v. Carty , 520 F.3d 984 ( 2008 )

United States v. Carter , 560 F.3d 1107 ( 2009 )

United States v. Jesus Cordova Barajas, AKA Jesus Magana ... , 360 F.3d 1037 ( 2004 )

United States v. Rosas , 615 F.3d 1058 ( 2010 )

United States v. Olano , 113 S. Ct. 1770 ( 1993 )

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