United States v. Jesus Elizondo ( 2015 )

FILED
NOT FOR PUBLICATION JUL 10 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30093
Plaintiff - Appellee, D.C. No. 2:13-cr-00024-SEH-2
v.
ORDER OF DISMISSAL*
JESUS E. ELIZONDO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted July 8, 2015**
Portland, Oregon
Before: N.R. SMITH and OWENS, Circuit Judges, and HAYES,*** District Judge.
Defendant Jesus E. Elizondo appeals the district court’s denial of the
government’s motion for downward departure under U.S.S.G. § 2D1.1. This
*
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).
***
The Honorable William Q. Hayes, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
appeal incorporates a challenge to his 120-month sentence imposed following his
guilty plea to one count of conspiracy to possess with intent to distribute
methamphetamine in violation of 21 U.S.C. § 846.
In his plea agreement, Elizondo waived his right “to appeal from the
sentence imposed by the Court.” Elizondo contends that the waiver does not bar
this appeal because he challenges the “judgment”—the district court’s denial of the
U.S.S.G. § 2D1.1 motion—and not the sentence imposed. However, in this case,
there is no distinction between a challenge to the district court’s decision to deny
the government’s motion for downward departure and a challenge of the sentence
imposed. See United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir. 2005).
Thus, the waiver bars this appeal, and we dismiss. United States v. Watson, 582
F.3d 974, 988 (9th Cir. 2009).
DISMISSED.
2