United States v. Jose Cruz-Gamez ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10335
Plaintiff-Appellee, D.C. No. 3:19-cr-00196-WHA-1
v.
JOSE RAMON CRUZ-GAMEZ, AKA MEMORANDUM*
Brian Colindre-Hernandez, AKA Jose Cruz,
AKA Jose Ramon Cruz Martinez, AKA Jose
Martinez Cruz, AKA Normin Ricardo
Ramos-Calis, AKA Normin Ricardo Ramos-
Callis, AKA Carlos Torres-Hernandez,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Jose Ramon Cruz-Gamez appeals from the district court’s judgment and
challenges the 63-month sentence imposed following his guilty-plea conviction for
*
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).
possession of fentanyl with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C), and illegal reentry after deportation, in violation of 8 U.S.C.
§ 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Cruz-Gamez contends that his sentence is substantively unreasonable. The
government argues that this claim is covered by the appeal waiver in the parties’
plea agreement. We decline to enforce the waiver, and instead affirm on the
merits. See United States v. Jacobo Castillo, 496 F.3d 947, 956-57 (9th Cir. 2007)
(en banc) (appeal waiver is not a jurisdictional bar). Contrary to Cruz-Gamez’s
argument, the district court did not abuse its discretion in imposing the 63-month
sentence, which was at the bottom of the uncontested Guidelines range. See Gall
v. United States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable
in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the
circumstances, including the failure of Cruz-Gamez’s previous sentences to deter
him. See Gall, 552 U.S. at 51.
Cruz-Gamez also asks us to remand for resentencing in light of COVID-19.
However, we have no authority to vacate a sentence that is procedurally sound and
substantively reasonable.1 See United States v. Rangel, 697 F.3d 795, 800 (9th Cir.
1
Cruz-Gamez acknowledges that he is not alleging any procedural defects in the
sentence. His reliance on United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005)
(en banc), to argue that this court can remand for the district court to reconsider his
sentence even absent any procedural or substantive error, is misplaced. The
holding in Ameline was predicated on the substantial change in sentencing law
2 19-10335
2012). This disposition is without prejudice to any right Cruz-Gamez may have to
seek compassionate release under 18 U.S.C. § 3582(c)(1)(A).
AFFIRMED.
announced by the Supreme Court in United State v. Booker, 543 U.S. 220 (2005).
Cruz-Gamez points to no such legal change here.
3 19-10335