United States v. Erica Pena ( 2022 )

FILED
NOT FOR PUBLICATION
APR 6 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50152
Plaintiff-Appellee, D.C. Nos.
3:20-cr-02340-LAB-1
v. 3:20-cr-02340-LAB
ERICA RENEE PENA,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted April 4, 2022**
Pasadena, California
Before: SCHROEDER, S.R. THOMAS, and BEA, Circuit Judges.
Erica Pena appeals from her sentence for importing methamphetamine in
violation of 21 U.S.C. §§ 952, 960. Pena pleaded guilty to importing
approximately 75 grams of methamphetamine pursuant to a plea agreement that
*
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).
contained an appeal waiver. We have jurisdiction under 28 U.S.C. § 1291.
Because the parties are familiar with the facts, we need not recount them here.1
The government claims this appeal is barred by the appeal waiver. Pena
implicitly argues the appeal is not barred because she contends the government
breached the plea agreement. See United States v. Hernandez-Castro, 814 F.3d
1044, 1045 (9th Cir. 2016) (“A defendant is released from his or her appeal waiver
if the government breaches the plea agreement.”).
Pena claims the government breached the plea agreement by failing to
defend a two-level downward variance for waiving the indictment during the
COVID judicial emergency when the prosecutor agreed with the sentencing judge
that Pena’s waiver of the indictment was “taken into consideration” by the four-
level fast-track departure. We disagree.
The sentencing judge asked the prosecutor whether the waiver of the
indictment had been taken into account by the “four point off for Fast Track,” not
whether any such waiver was preclusively contemplated by the Fast Track
departure. Thus the government’s agreement was an “honest response . . . to direct
judicial inquiry,” which does not constitute breach. United States v. Allen, 434
1
We grant Pena’s motion (Dkt. 6) and take judicial notice of the sentencing
transcript she submits. See Reyn’s Pasta Bella, LLC v.Visa USA, Inc., 442 F.3d
741, 746 (9th Cir. 2006).
2
F.3d 1166, 1175 (9th Cir. 2006) (quoting United States v. Maldonado, 215 F.3d
1046, 1052 (9th Cir. 2000)). Furthermore, “[w]hen the government agrees to a
sentence pursuant to a plea bargain, it need not explain its reasons nor make the
recommendation enthusiastically.” Maldonado, 215 F.3d at 1051–52. The
prosecutor advocated for a sentence of time-served, which encompassed the 2-level
COVID variance. That Pena wishes the prosecutor would have argued more
persuasively or better explained the reason for the 2-level COVID variance does
not constitute breach.
Because the government did not breach the plea agreement, we are bound to
enforce Pena’s appeal waiver. See Hernandez-Castro, 814 F.3d at 1046.
DISMISSED.
3