United States v. Jesus Covarruvias-Villareal ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 7 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50310
Plaintiff-Appellee, D.C. Nos.
3:21-cr-00031-WQH-1
v. 3:21-cr-00031-WQH
JESUS COVARRUVIAS-VILLAREAL,
MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 21-50311
Plaintiff-Appellee, D.C. Nos.
3:21-cr-01706-WQH-1
v. 3:21-cr-01706-WQH
JESUS COVARRUVIAS-VILLAREAL,
AKA Jesus Cobarruvias-Villareal,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted March 16, 2023
Pasadena, California
Before: PAEZ, CHRISTEN, and MILLER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Jesus Covarruvias-Villareal appeals his 12-month sentence for illegal reentry
under 8 U.S.C. § 1326 and his 10-month sentence for violation of the terms of his
supervised release. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
1. Breach of Plea Agreement. In July 2021, Covarruvias-Villareal entered
into a plea agreement for his illegal reentry charge. The government agreed to
recommend that Covarruvias-Villareal receive a “COVID variance” at
sentencing—a two-level downward variance under 18 U.S.C. § 3553(a) “due to the
nature of th[e] case and as part of the Temporary Plea Offer program.” The plea
agreement also contained a breach waiver provision, under which Covarruvias-
Villareal agreed to waive “any claim that the Government has not complied with
this agreement” if he failed to raise it “before the sentencing hearing is complete.”
At sentencing, the court expressed skepticism about whether Covarruvias-
Villareal deserved to receive the COVID variance. In response, the government’s
counsel made several comments about Covarruvias-Villareal’s criminal history.1
Covarruvias-Villareal argues on appeal that the government’s comments amounted
to a breach of the plea agreement’s promise that the government would
recommend the variance. The government responds that Covarruvias-Villareal
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The government stated that it “st[oo]d by . . . the COVID variance,” but noted
that the variance was “very generous in light of the defendant’s criminal history.”
The government proceeded to discuss the nature of Covarruvias-Villareal’s prior
criminal offenses, including that several of the offenses “don’t score” as points for
calculating his criminal history category.
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waived any breach of the plea agreement by failing to object at sentencing, and that
in any event, counsel’s comments did not amount to breach.
Because Covarruvias-Villareal’s counsel failed to object to the prosecutor’s
statements at sentencing, his claim of breach is subject to plain error review. See
United States v. Whitney, 673 F.3d 965, 970 (9th Cir. 2012). One factor we must
consider under plain error review is whether the error affected the defendant’s
substantial rights. Id. (citation omitted). An error affects a defendant’s substantial
rights if there is a reasonable probability that it affected the outcome. United
States v. Gonzalez-Aguilar, 718 F.3d 1185, 1189 (9th Cir. 2013); see also United
States v. Farias-Contreras, 60 F.4th 534, 545–46 (9th Cir. 2023).
Here, even assuming that Covarruvias-Villareal’s claim is not waived and
that the government’s comments breached the plea agreement, we conclude that
the breach did not affect Covarruvias-Villareal’s substantial rights. There is strong
evidence that the district court intended to reject the COVID variance from the
outset of the sentencing hearing. Indeed, prior to the prosecutor’s remarks, the
court stated that it was “not necessarily inclined to apply” the variance. The court
explained that it had already taken COVID circumstances into account when it
sentenced Covarruvias-Villareal in February 2021 for a separate § 1326 charge (for
which he received time-served). The court expressed reluctance to give
Covarruvias-Villareal the variance a second time, reasoning that he “kn[ew] better
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than anybody that custody is more difficult during the pandemic.” And while the
court referred to the prosecutor’s statements about criminal history later in the
hearing, the court provided significantly more detail than the government,
suggesting that it relied on the facts in the pre-sentence report rather than on the
government’s brief statements. See Gonzalez-Aguilar, 718 F.3d at 1187–89.
Given the court’s stated rationale for declining to apply the variance, Covarruvias-
Villareal cannot show he suffered prejudice from a breach of the plea agreement.
2. Sentencing Errors. Covarruvias-Villareal argues that his cumulative 22-
month sentence with a 3-year period of supervised release is unreasonable. In his
plea agreement, Covarruvias-Villareal waived “all rights to appeal . . . [the]
sentence,” subject to exceptions not applicable here. Assuming, without deciding,
that the government breached the plea agreement and that Covarruvias-Villareal is
therefore relieved of his appeal waiver, we conclude that the sentence is
reasonable. Challenges to a criminal sentence are reviewed “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Such
challenges are analyzed “in two steps: First, we consider whether the district court
committed significant procedural error. Second, we consider the substantive
reasonableness of the sentence.” United States v. Rosales-Gonzales, 801 F.3d
1177, 1179 (9th Cir. 2015) (internal quotation marks and citations omitted)).
Covarruvias-Villareal argues that the court procedurally erred by failing to
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apply a COVID variance for reasons inconsistent with the policy behind the
variance. This argument is properly considered in the context of substantive
unreasonableness because we do not procedurally review “whether the district
court correctly applied [the relevant departure provision].” Id. at 1180 (alterations
in original) (quoting United States v. Tankersley, 537 F.3d 1100, 1114 (9th
Cir.2008)).
Covarruvias-Villareal asserts that his sentence is substantively unreasonable
because the court improperly weighed the § 3553(a) factors, ignored the joint
sentencing recommendation of the parties, and failed to consider the circumstances
of the pandemic. These arguments are unpersuasive. The sentence imposed
reasonably reflects the district court’s concern for deterrence in light of
Covarruvias-Villareal’s recent, repeated reentries. It was not unreasonable for the
court to weigh deterrent interests more heavily than pandemic-related concerns
when Covarruvias-Villareal had received a COVID variance earlier that year to
little deterrent effect. The court also was not required to select a sentence
contemplated by the plea agreement. The district court weighed other § 3553(a)
factors, including Covarruvias-Villareal’s family and economic motivations for
entering the United States, but reasonably determined that a 22-month sentence
was necessary.
AFFIRMED.
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