United States v. Roberto Gonzalez-Loera , 680 F. App'x 595 ( 2017 )


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  •                                                                            FILED
    NOT FOR PUBLICATION
    MAR 01 2017
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No.    15-10481
    Plaintiff-Appellee,                D.C. No. 2:13-cr-01123-SPL-1
    v.
    MEMORANDUM*
    ROBERTO GONZALEZ-LOERA,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Arizona
    Steven Paul Logan, District Judge, Presiding
    Argued and Submitted February 16, 2017
    San Francisco, California
    Before:      TASHIMA and HURWITZ, Circuit Judges, and ADELMAN,**
    District Judge.
    Roberto Gonzalez-Loera (“Gonzalez”) appeals his conviction and sentence
    for conspiracy to possess with intent to distribute five kilograms or more of
    cocaine and fifty grams or more of methamphetamine in violation of 21 U.S.C.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Lynn S. Adelman, United States District Judge for the
    Eastern District of Wisconsin, sitting by designation.
    §§ 841(a)(1), (b)(1)(A)(ii), and (b)(1)(A)(viii). We have jurisdiction under 
    28 U.S.C. § 1291
    , and we affirm.
    1.      Gonzalez argues that the district court violated Fed. R. Crim. P. 11 by
    modifying his plea agreement, but has not shown plain error because he has not
    shown that any alleged error affected substantial rights. See United States v. Kyle,
    
    734 F.3d 956
    , 963, 966 (9th Cir. 2013). Count 1 of the superseding indictment is
    identical to count 1 of the original indictment with the addition of four additional
    co-conspirators. Gonzalez argues that this addition had the potential to increase his
    sentence by expanding the scope of the conspiracy and, thus, the amount of drugs
    involved. However, a review of the record shows that the addition of four
    additional co-conspirators did not in fact affect the Guidelines range or Gonzalez’s
    ultimate sentence. Nor does the evidence suggest that Gonzalez would not have
    pled guilty to count 1 of the superseding indictment; on the contrary, his initials by
    every insertion of the word “superseding” in the plea agreement indicate that he
    intended to plead to that count.
    2.      Gonzalez also raised a double jeopardy challenge. But this challenge
    is waived under the valid and binding appellate waiver in Gonzalez’s plea
    agreement. See United States v. Hernandez-Guardado, 
    228 F.3d 1017
    , 1028 (9th
    Cir. 2000).
    2
    3.     Gonzalez argues that the court intruded upon the prosecutor’s
    charging decision by requiring him to plead to count 1 of the superseding
    indictment. But, the government intended him to plead to this count. The
    references in the plea agreement to the original indictment were simply and
    unintended oversight. Therefore, the court did not force the prosecution to bring “a
    charge it did not want to bring.” In re Ellis, 
    356 F.3d 1198
    , 1209 (9th Cir. 2004)
    (en banc).
    For the foregoing reasons, the judgment of conviction is AFFIRMED.
    3
    

Document Info

Docket Number: 15-10481

Citation Numbers: 680 F. App'x 595

Filed Date: 3/1/2017

Precedential Status: Non-Precedential

Modified Date: 1/13/2023