United States v. Jose Serrano-Navarro , 510 F. App'x 558 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 22 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 10-50571
Plaintiff - Appellee, D.C. No. 2:09-cr-00441-PSG-10
v.
MEMORANDUM *
JOSE MANUEL SERRANO-NAVARRO,
AKA Chili, AKA Jose Serrano,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted February 4, 2013 **
Pasadena, California
Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.
Jose Serrano-Navarro appeals his conviction by guilty plea and sentence for
one count of conspiracy to distribute and possess with intent to distribute more
*
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).
than 50 grams of methamphetamine, 21 U.S.C. § 846. He contends that the district
court misled him about the immigration consequences of his guilty plea, committed
procedural errors at sentencing, and imposed a sentence that was substantively
unreasonable. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court’s advice that there “may” be immigration consequences to
Serrano-Navarro’s conviction—without acknowledging that such consequences
were in fact mandatory—did not violate due process or Federal Rule of Criminal
Procedure 11 or render his plea involuntary and unknowing. United States v.
Amador-Leal, 276 F.3d 511, 517 (9th Cir. 2002) (“Many district judges comment
in their Rule 11 colloquy that a plea of guilty and resulting conviction may affect
an alien’s status in this country, and inquire whether the defendant understands the
possible immigration consequences of his plea. Although not required by Rule 11
or due process, we commend this sort of dialogue . . . .”). The Supreme Court’s
decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not require a
different result. See United States v. Delgado-Ramos, 635 F.3d 1237, 1240–41
(9th Cir. 2011) (per curiam).
In general, the government is entitled to enforce appeal-waiver agreements.
United States v. Mendez-Gonzalez, 697 F.3d 1101, 1103 (9th Cir. 2012) (per
curiam). The appeal waiver in Serrano-Navarro’s plea agreement is enforceable
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because his guilty plea complied with Rule 11, the district court did not inform him
that he has an unqualified right to appeal, and his sentence comports with both the
terms of the plea agreement and the law. See id. (citing United States v. Bibler,
495 F.3d 621, 624 (9th Cir. 2007); United States v. Watson, 582 F.3d 974, 987 (9th
Cir. 2009)).
Serrano-Navarro’s appeal waiver covers challenges to both the sentence
itself and the manner in which it was calculated. Therefore, Serrano-Navarro has
waived his remaining arguments that (1) the district court violated Federal Rule of
Criminal Procedure 32 by failing to address his request for a downward departure
based on an overrepresentation of the seriousness of his criminal history; (2) his
low-end guidelines sentence was substantively unreasonable; and (3) his sentence
for a low-level drug crime was disproportionately harsh and amounted to cruel and
unusual punishment in violation of the Eighth Amendment.
AFFIRMED.
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