United States v. Fidel Ortiz-Valdez, Jr. , 461 F. App'x 620 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50086
Plaintiff - Appellee, D.C. No. 3:09-cr-03403-L-1
v.
MEMORANDUM*
FIDEL ORTIZ-VALDEZ, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Submitted December 8, 2011**
Pasadena, California
Before: NOONAN, GOULD, and IKUTA, Circuit Judges.
The district court did not err in imposing a 16-level sentence enhancement
pursuant to section 2L1.2 of the United States Sentencing Guidelines because
Ortiz’s voluntary manslaughter conviction was not vacated, and Ortiz may not
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth 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).
collaterally attack a prior state conviction used to enhance his sentence. See Custis
v. United States, 511 U.S. 485, 487 (1994); United States v. Martinez-Martinez,
295 F.3d 1041, 1044 (9th Cir. 2002). Even if we deemed the state court’s tentative
ruling to constitute vacatur of his state conviction, the district court did not err in
relying on the conviction for sentencing enhancement purposes: only the validity
of the sentence at the time of deportation is relevant for purposes of the
section 2L1.2(b)(1)(A) enhancement, see United States v. Salazar-Mojica, 634
F.3d 1070, 1074 (9th Cir. 2011), and Ortiz’s conviction was valid at the time he
was deported in 2007. We reject Ortiz’s argument that Salazar-Mojica is
distinguishable because it addressed the vacatur of a state conviction on state law
grounds, not constitutional grounds, because Ortiz likewise moved the state court
to vacate his conviction on technical state law grounds, not constitutional grounds.
See id.Ortiz waived his right to appeal the $700 fine by the plain terms of his
sentencing agreement. It is irrelevant that the agreement lacked specific mention
of a fine, because a fine was contemplated by the government’s proposed
recommendation of an offense level of 24 under the Sentencing Guidelines. See
United States v. Johnson, 67 F.3d 200, 202–03 (9th Cir. 1995). Nor was the
agreement rendered unenforceable by the district court’s advisement that Ortiz had
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appeal rights, as the government promptly objected based on the limitations in the
sentencing agreement, and had no obligation to respond to defense counsel’s
remarks that Ortiz could appeal the fine. See United States v. Schuman, 127 F.3d
815, 817 (9th Cir. 1997).
AFFIRMED.
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