United States v. Diego Sanchez , 583 F. App'x 670 ( 2014 )

FILED
NOT FOR PUBLICATION JUL 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10327
Plaintiff - Appellee, D.C. No. 2:13-cr-00317-PGR-1
v.
MEMORANDUM*
DIEGO AVILA SANCHEZ, AKA Diegoa
Avila-Sanchez, AKA Diego Sanchez-
Avila,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Submitted July 9, 2014**
San Francisco, California
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.
Diego Avila challenges his conviction and sentence for illegal reentry into
the United States under 8 U.S.C. § 1326. We assume the parties are familiar with
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the facts of this case, so we do not recount them here. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
1. The government concedes that the waiver of Avila’s appeal rights
contained in the rejected plea agreement is unenforceable, and we agree. See In re
Morgan, 506 F.3d 705, 713 (9th Cir. 2007).
2. The district court rejected Avila’s plea agreement because it believed the
sentence was too lenient given Avila’s criminal history, the character of the crime,
and the need for deterrence. The district court did not reject the agreement in order
to independently punish Avila’s violation of the terms of supervised release, or
because it was “trying to force the government to pursue a charge it [did] not wish
to press.” In re Vasquez-Ramirez, 443 F.3d 692, 698 (9th Cir. 2006). The district
court’s rejection of the agreement did not improperly invade the Executive
Branch’s charging authority. See id.
3. Avila’s guilty plea was voluntary, and he had an adequate opportunity to
withdraw his plea under Federal Rule of Criminal Procedure 11(c)(5)(B). The
district court confirmed that the plea was freely and voluntarily given. After the
district court rejected the plea agreement, the court did not threaten to give Avila a
harsher sentence in the event Avila decided to withdraw his guilty plea and ended
up being sentenced after a trial. After being given an opportunity to withdraw his
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guilty plea, Avila opted to proceed. “The amount of time [defendant] had to
consider the plea is only relevant if it somehow rendered his plea coerced, and
therefore involuntary.” Doe v. Woodford, 508 F.3d 563, 570 (9th Cir. 2007).
There is no indication that Avila needed more time to understand that, if he
decided to proceed with sentencing, he would likely receive a higher sentence than
the one contemplated under the plea agreement. Avila could have requested more
time to speak with his attorney if he did not understand the consequences of going
forward after the plea agreement was rejected, but he did not do so. Nor did he ask
that the case be set for trial. Under these circumstances, it is apparent that Avila’s
decision to maintain his guilty plea and continue with sentencing was voluntary.
4. Avila did not properly object to the district court’s delivery of the
advisements required by Federal Rule of Criminal Procedure 11(c)(5) upon
rejection of a plea agreement, so we review this issue for plain error. The district
court stated in open court that it could not accept Avila’s plea agreement and that it
was rejecting the agreement. The district court also indicated that Avila would
likely receive a harsher sentence than that contemplated by the agreement if he
proceeded with sentencing. The district court stated in open court that it was
inclined to sentence Avila to a maximum of twenty-one months imprisonment, and
Avila did in fact receive this sentence. Avila cites no controlling authority that
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clearly indicates the district court’s advisements were erroneous. What is more, he
has not shown that his substantial rights have been affected, that is, “a reasonable
probability that, but for the error[s], he would not have entered the plea.” See
United States v. Roblero-Solis, 588 F.3d 692, 700 (9th Cir. 2009) (internal
quotation marks omitted). There was no plain error in the district court’s delivery
of the advisements.
5. Because we are not remanding this case for further proceedings, there is
no need to consider whether the case should be reassigned to a different district
court judge.
Avila’s request for judicial notice is GRANTED. The district court’s
judgment is AFFIRMED.
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