United States v. Hector Gomez Rodriguez ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 27 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10250
Plaintiff-Appellee, D.C. No.
1:19-cr-00161-DAD-BAM-1
v.
HECTOR MANUEL GOMEZ MEMORANDUM*
RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted December 14, 2023
San Francisco, California
Before: KOH, H.A. THOMAS, and DESAI, Circuit Judges.
Mr. Gomez Rodriguez pled guilty to conspiracy to manufacture over 1,000
marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 846 after being arrested
during a marijuana grow site raid. As part of his plea agreement, he agreed to an
appellate waiver. At the end of his sentencing hearings, the district court found that
Mr. Gomez Rodriguez was ineligible for a safety valve exemption from the statutory
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
mandatory minimum sentence, 18 U.S.C. § 3553(f)(2), because he had possessed a
firearm at the grow site. The court sentenced him to a mandatory minimum term of
120 months with a five-year supervised release period. On appeal, Mr. Gomez
Rodriguez challenges his sentence and asserts that the appellate waiver does not
apply. We have jurisdiction under 18 U.S.C. § 3742. We dismiss in part and affirm
in part.
We review whether a defendant has waived his right to appeal by plea
agreement de novo. United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004). We
typically review the constitutionality of a sentence de novo. United States v.
Hungerford, 465 F.3d 1113, 1116 (9th Cir. 2006). But when a defendant raises an
issue for the first time on appeal, we review for plain error. See United States v.
Olano, 507 U.S. 725, 731 (1993).
1. We dismiss Mr. Gomez Rodriguez’s appeal in part because he
knowingly and voluntarily agreed to the plea agreement, and the plain language of
the agreement includes a waiver of his right to appeal his sentence. See Davies v.
Benov, 856 F.3d 1243, 1246–47 (9th Cir. 2017) (“A defendant’s waiver of his rights
to appeal . . . is generally enforced if (1) the language of the waiver encompasses his
right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily
made” (internal citation omitted)). Although an appellate waiver does not prevent
challenges to “illegal” sentences, United States v. Torres, 828 F.3d 1113, 1125 (9th
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Cir. 2016), a sentence is only “illegal if it exceeds the permissible statutory penalty
for the crime or violates the Constitution,” United States v. Bibler, 495 F.3d 621,
624 (9th Cir. 2007).1 Therefore, this exception does not permit Mr. Gomez
Rodriguez to appeal the district court’s refusal to apply the safety valve statute to his
sentence. See United States v. Wells, 29 F.4th 580, 585 (9th Cir. 2022) (declining to
extend meaning of “illegal sentence” to encompass sentences potentially violating
18 U.S.C. § 3553). The exception does, however, cover his constitutional claim that
his sentence violates the Eighth Amendment. See id. at 587. Accordingly, we dismiss
Mr. Gomez Rodriguez’s safety valve claim, but reach the merits of his constitutional
claim.
2. The district court’s sentence does not violate the Eighth Amendment.
The Eighth Amendment forbids sentences that are “grossly disproportionate” to the
crime. Graham v. Florida, 560 U.S. 48, 59–60 (2010). When a defendant challenges
his sentence, we first compare “the gravity of the offense to the severity of the
sentence.” United States v. Hammond, 742 F.3d 880, 884 (9th Cir. 2014) (quoting
United States v. Williams, 636 F.3d 1229, 1232 (9th Cir. 2011)). If the initial
comparison “leads to an inference of gross disproportionality,” we then “compare
1
Mr. Gomez Rodriguez asks us to interpret “illegal sentence” to include a
sentence which is based on a finding of safety valve ineligibility, but our circuit’s
precedent forecloses us from doing so. See United States v. Wells, 29 F.4th 580, 585
(9th Cir. 2022); United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999).
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the defendant’s sentence with the sentences received by other offenders in the same
jurisdiction and with the sentences imposed for the same crime in other
jurisdictions.” Id. (quoting Graham, 560 U.S. at 60).
Here, the first step of the analysis is dispositive. Mr. Gomez Rodriguez was
involved in growing 4,494 marijuana plants that damaged federal land, and the
district court imposed the mandatory minimum sentence under 21 U.S.C. §
841(b)(1)(A)(vii). As applied to Mr. Gomez Rodriguez’s offense, the sentence
imposed does not give rise to “an inference of gross disproportionality,” Hammond,
742 F.3d at 884 (quoting Graham, 560 U.S. at 60), especially considering the
“substantial deference” we grant to Congress’s authority in determining the
punishments for federal crimes, Solem v. Helm, 463 U.S. 277, 290 (1983); see also
United States v. Albino, 432 F.3d 937, 938 (9th Cir. 2005) (per curiam).
We DISMISS in part and AFFIRM in part.
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