United States v. Braulio Jimenez ( 2020 )

FILED
NOT FOR PUBLICATION
OCT 14 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30212
Plaintiff-Appellee, D.C. No.
4:18-cr-06008-EFS-1
v.
BRAULIO JIMENEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted October 9, 2020**
Seattle, Washington
Before: GRABER and W. FLETCHER, Circuit Judges, and KOBAYASHI,***
District Judge.
*
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).
***
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
Defendant Braulio Jimenez appeals his conviction and 216-month sentence,
imposed following his guilty plea for conspiracy to distribute methamphetamine,
cocaine, and heroin, money laundering, and possession with intent to distribute
fentanyl. Jimenez contends (1) that the Federal Rule of Criminal Procedure 11
plea colloquy was inadequate, and (2) that his sentence was unreasonable. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Jimenez contends that the Rule 11 plea colloquy was inadequate because
(a) he was not advised that statements he made during the Rule 11 hearing could be
used against him; (b) he was not advised of the possibility of restitution as part of
the sentence; and (c) he was not advised of potential immigration consequences of
his conviction. These objections were not made in the district court. We review
for plain error. United States v. Dominguez Benitez, 542 U.S. 74, 80–81 (2004).
The district court did not commit error, let alone plain error, during the Rule
11 plea colloquy. First, Jimenez was placed under oath at the beginning of the
Rule 11 hearing and was advised that his statements were made under penalty of
perjury. He was not explicitly warned that his statements could be used against
him, but, at the same time, he was also given no reason to believe that there was
any limitation on their use. He was clearly on notice that they would be relevant,
and would be used, in the context of the Rule 11 hearing. Second, restitution was
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not sought by the Government. The failure to address restitution, if error at all,
was harmless. Finally, Jimenez is a United States citizen. There were therefore no
immigration consequences of his plea. See Padilla v. Kentucky, 559 U.S. 356,
368-69 (2010).
2. Jimenez argues that his 216-month sentence was substantively
unreasonable. When assessing a criminal sentence for substantive reasonableness,
we review for abuse of discretion. United States v. Ressam, 679 F.3d 1069, 1086
(9th Cir. 2012) (en banc). The record shows that the district court spoke at length
during the sentencing hearing and justified its decision to impose a below-
guideline range sentence after weighing various factors, such as Jimenez’s age and
lack of any prior felony conviction. There is no basis to set aside the sentence as
unreasonable.
AFFIRMED.
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