United States v. Jose Alvarez , 708 F. App'x 334 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10185
Plaintiff-Appellee, D.C. No. 3:15-cr-00054-RCJ
v.
MEMORANDUM*
JOSE ARNOLDO ALVAREZ, a.k.a. Luis
Arias-Fonseca,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Jose Arnoldo Alvarez appeals from the district court’s judgment and
challenges the 78-month sentence imposed following his guilty-plea conviction for
conspiracy to possess with intent to distribute methamphetamine, in violation of 21
U.S.C. §§ 841(a), 841(b)(1)(B)(viii), and 846. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We affirm.
Alvarez contends that the district court’s comments regarding his national
origin reveal a bias that required the court’s recusal under either 28 U.S.C.
§§ 455(a) and (b)(1), or the Due Process Clause, or both. Alvarez further argues
that the district court’s reliance on his nationality resulted in a sentence that
violates his due process rights. The government contends that this appeal is barred
by a valid appeal waiver, and that the district court’s comments do not demonstrate
potential or actual bias. We review de novo whether a defendant has waived his
right to appeal. See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011).
Because Alvarez raises his impartiality claims for the first time on appeal, we
review for plain error. See United States v. Antonakeas, 255 F.3d 714, 727 (9th
Cir. 2001) (unconstitutional sentence claim); United States v. Bosch, 951 F.2d
1546, 1548 (9th Cir. 1991) (section 455 claim).
The plea waiver does not apply to Alvarez’s constitutional claim, see United
States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007), and we decline to enforce it as
to his related section 455 claim. Both claims, however, fail on their merits. The
district court’s comments regarding Alvarez’s potential involvement with a
Mexican cartel were made in the context of assessing Alvarez’s role in the offense
and whether he was entitled to a minor role reduction. In context, the comments
do not reasonably call the district court’s impartiality into question or “reveal such
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a high degree of . . . antagonism as to make fair judgment impossible.” Liteky v.
United States, 510 U.S. 540, 555 (1994); see also Taylor v. Regents of Univ. of
Cal., 993 F.2d 710, 712 (9th Cir. 1993) (stating the standard for recusal under
section 455). The record demonstrates that, unlike the defendant in United States
v. Borrero-Isaza, 887 F.2d 1349 (9th Cir. 1989), Alvarez was not penalized
because of his national origin. Rather, the district court denied Alvarez a minor
role reduction because his role in the offense was greater than that of his charged
coconspirator. Furthermore, the district court’s comments do not show that
Alvarez’s due process rights were violated. See United States v. Odachyan, 749
F.3d 798, 802-03 (9th Cir. 2014).
AFFIRMED.
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