United States v. Mario Basulto , 593 F. App'x 650 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 11 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50363
Plaintiff - Appellee, D.C. No. 2:12-cr-01135-RGK-21
v.
MEMORANDUM*
MARIO BASULTO,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted February 9, 2015**
Pasadena, California
Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.
Defendant Mario Basulto appeals the 151-month sentence imposed
following his guilty plea pursuant to a plea agreement to one count of RICO
conspiracy in violation of 18 U.S.C. § 1962(d). He argues that the district court
*
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).
committed procedural error and improperly applied the career-offender
enhancement, U.S.S.G. § 4B1.1, because RICO conspiracy is not a categorical
controlled substance offense. In light of the valid appeal waiver, we dismiss.
Basulto agrees that he waived his right to bring this appeal as part of his
guilty plea if his sentence was 188 months or less. The plea agreement included a
waiver of “the right to appeal all of the following: (a) the procedures and
calculations used to determine and impose any portion of the sentence; [and] (b)
the term of imprisonment imposed by the Court.” Basulto indicated at the change-
of-plea hearing that he was aware that he was waiving his right to appeal.
Despite having received a sentence of 151 months, Basulto argues that the
appeal waiver is unenforceable because the district court revived the right to bring
this appeal by stating at the end of the sentencing hearing, after being prompted by
defense counsel and without objection by the government, “If you wish to appeal
this sentence, it has to be done within 14 days of today.” Nowhere in the record
does the district court unequivocally instruct Basulto that he has the right to bring
any appeal within the scope of his waiver. The court only informed Basulto that
any appeal must be filed within 14 days, not that he had a right to bring an appeal
notwithstanding the waiver. If Basulto wished to bring an appeal beyond the scope
of his waiver, such as a challenge to the legality of the sentence, see United States
2 13-50363
v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986), such an appeal would be subject to
the 14-day limitation.
The lack of an unequivocal advisement of a right to appeal distinguishes this
case from the authorities Basulto cites. See United States v. Buchanan, 59 F.3d
914, 917 (9th Cir. 1995) (district court stated, “I want to advise you as well that . . .
you have the right to appeal findings which I make today regarding sentencing,”
indicating “a right to appeal despite the contrary indication in the plea agreement”
and invalidating the waiver); see also United States v. Felix, 561 F.3d 1036, 1041
& n.5 (9th Cir. 2009) (district court on two occasions told defendant that he had the
right to appeal the sentence); United States v. Otis, 127 F.3d 829, 834 (9th Cir.
1997) (per curiam) (district court told defendant he could appeal).
DISMISSED.
3 13-50363