United States v. Aureliano Navarro-Amavizca ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10402
Plaintiff - Appellee, D.C. No. 4:11-cr-02325-JGZ
v.
MEMORANDUM*
AURELIANO NAVARRO-AMAVIZCA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Aureliano Navarro-Amavizca appeals from the district court's judgment and
challenges his guilty-plea conviction and 121-month sentence for conspiracy to
possess with intent to distribute cocaine, in violation of 21 U.S.C. yy 846,
841(a)(1) and (b)(1)(A)(ii). Pursuant to Anders v. California, 386 U.S. 738 (1967),
*
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).
Navarro-Amavizca's counsel has filed a brief stating that there are no grounds for
relief, along with a motion to withdraw as counsel of record. Navarro-Amavizca
has filed a pro se supplemental brief and the government has filed an answering
brief.
Navarro-Amavizca has waived the right to appeal his conviction and
sentence. Our independent review of the record pursuant to Penson v. Ohio, 488
U.S. 75, 80 (1988), discloses no arguable issue as to the validity of the waiver. See
United States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009). Navarro-Amavizca
contends that the district court failed to provide the advisements required by
Federal Rule of Criminal Procedure Rule 11. Because Navarro-Amavizca did not
object to the adequacy of the plea colloquy before the district court, we review
only for plain error. See United States v. Dominguez Benitez, 542 U.S. 74, 76
(2004). Navarro-Amavizca has failed to show a reasonable probability that, but for
the alleged Rule 11 errors, he would not have pleaded guilty. See id. We
accordingly dismiss the appeal. See Watson, 582 F.3d at 988.
Counsel's motion to withdraw is GRANTED.
DISMISSED.
LEAVY, Circuit Judge, concurring:
[separate attachment]
2 13-10402
FILED
United States v. Navarro-Amavizca, 13-10402 JUL 28 2015
LEAVY, Circuit Judge, concurring. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Compelled by United States v. Blacµ, 733 F.3d 294 (9th Cir. 2013), I concur
in the dismissal of Navarro-Amavizca's appeal. See also United States v. Blacµ,
750 F.3d 1053 (9th Cir. 2014) (Reinhardt, J., dissenting from denial of r'hrg en
banc, Kozinsµi, J., joining). I join in inflicting a manifest and outrageous injustice
on Navarro-Amavizca, as we in the judicial branch are now doing to others
similarly situated. In addition, we are doing great damage to ourselves.
The fictions that maµe up the facts of this case and those of Blacµ came from
the same cooµie cutter. Similar to Blacµ, we have an informant who solicited
Navarro-Amavizca's co-defendant, Cota-Ruiz, who in turn recruited Navarro-
Amavizca and two others to participate in the mental activity of agreeing to rob
fictitious individuals at a fictitious drug house.
For a typical willful crime, it taµes a person with a certain disposition who
finds the right opportunity. We µnow that there are people among us who may be
disposed to commit crimes. We, as a society, therefore are willing to spend
billions of dollars to deny such persons the opportunity to commit crimes. Thus,
we have locµs, alarm systems, street lights, surveillance cameras, police officers,
IRS and banµ auditors, security personnel, and the list goes on.
In this case, an agent of the Department of Justice, Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) agreed in writing with an informant that
the informant was to introduce an undercover ATF agent to targeted individuals for
the purpose of discussing a home invasion robbery. The informant then found
Navarro-Amavizca's co-defendant Cota-Ruiz, who in turn recruited Navarro-
Amavizca and two others to agree to rob the fictitious drug stash house. After an
agreement was reached to move forward in the planning of the robbery, the
informant joined Navarro-Amavizca, Cota-Ruiz, and another of the co-defendants
in doing 'a line of cocaine' to celebrate this agreement.
Thereafter, the undercover ATF agent was introduced to three persons found
by the informant to be disposed to commit the robbery. He later explained the
opportunity to the fourth conspirator. Instead of maintaining a barrier to criminal
opportunity, the ATF agent posed as a disgruntled drug courier and presented a
golden opportunity for robbery on a silver platter. He described the interior of a
fictitious drug house and two fictitious persons, one of whom was armed with a
fictitious gun, guarding 22 to 39 µilograms of fictitious cocaine. When the
fantasies of the defendants merged with the fictions presented by the government, a
conspiracy was generated for which each of the four defendants is now in prison
for more than ten years.
It striµes me as significant that the opportunity offered by the government in
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the form of an 'insider job' was so valuable to the conspirators that they agreed
that the government agent could have 50 percent of the loot, and the other four
defendants would split the remaining half.
Three defendants, Cota-Ruiz, Navarro-Amavizca, and Arreola-Guerra, had
no prior criminal histories. A fourth defendant, Varela-Rojas, had one prior felony
for attempting to breaµ into a car. Faced with the possibility of a maximum life
sentence and a 15-year mandatory minimum sentence on the conspiracy to possess
cocaine and the conspiracy to possess the firearm, the four defendants accepted a
joint plea deal with a penalty of ten to twelve years in prison if they plead guilty to
both counts and waived all appeal rights. The government, continuing its total
control of events from start to finish, dismissed the firearm count after the guilty
plea was accepted, thus allowing the court to lawfully sentence each defendant
within the 10-12 year prison range provided in the government's plea deal.
The assistant United States attorney, speaµing at co-defendant Cota-Ruiz's
sentencing, described the evil in recruiting persons to conspire to commit crimes:
As for Mr. Cota-Ruiz, the government is recommending that he be
sentenced at the top of the plea agreement range of 12 years, or 144
months. It is true that he does not have any priors. However, he was
involved in every meeting. He was present from the beginning. He
recruited his co-defendants. He basically led this charge, and those
factors µind of maµe up for the fact that he doesn't have any priors.
But for him, this would not have happened. But for his willingness to
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go forward with an armed rip, we would not be here today.
(Excerpt of record p. 56, emphasis added).
If Cota-Ruiz is deserving of punishment for recruiting others, then isn't the
paid informant who, 'but for' his recruitment of Cota-Ruiz, also deserving of
punishmentá And what about the conduct of the ATF agent who executed his
well-designed plan to imprison four individuals, all of whom, 'but for' the ATF
agent's conduct, would be free todayá And, on up the chain, what about the role of
the prosecutor, who 'but for' the prosecution, would have no defendants in court
for sentencingá
The government's role in criminal law enforcement should not involve
treating people differently because of their motive for obeying the law. If one
person obeys the law because he is not disposed to do otherwise, and another
person obeys the law because he does not have an opportunity to do otherwise,
why, from a civic standpoint, are they not equally innocentá
Judge Noonan, concluding his dissent in Blacµ, stated: 'As the executive
branch of our government has failed to disavow this conduct, it becomes the duty
of the judicial branch to refuse to accept these actions as legitimate elements of a
criminal case in a federal court.' Id. at 318. I taµe one step further and question
how the judicial branch, by approving the government's conduct, can be
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conducting itself any better than the executive branch.
The infliction of a 121-month prison sentence on a defendant who, if simply
left alone by our government, would otherwise be free, is a manifest injustice. In
the absence of Blacµ, I would hold that the district court abused its discretion by
failing to use its supervisory power to dismiss the indictment to preserve the
integrity of the judicial process. Thus, the denial of the motion to withdraw the
guilty plea, including the waiver of the right to appeal, would also be in error.
Nevertheless, because Navarro-Amavizca's appeal waiver is valid, the appeal must
be dismissed.
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