United States v. Leonel Perez

FILED
NOT FOR PUBLICATION DEC 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50519
Plaintiff - Appellee, D.C. No. 2:13-cr-00359-SVW-1
v. MEMORANDUM*
LEONEL AVILA-PEREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen Wilson, District Judge, Presiding
Submitted November 20, 2014**
Pasadena, California
Before: SCHROEDER and NGUYEN, Circuit Judges, and ZOUHARY,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jack Zouhary, United States District Judge, Northern
District of Ohio, sitting by designation.
Defendant-Appellant Leonel Avila-Perez (“Avila-Perez”) appeals the district
court’s rejection of his Federal Rule of Criminal Procedure 11(c)(1)(C) sentence
bargain. He also appeals his 36-month sentence for illegal reentry in violation of 8
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and
now affirm.
1. Because the district court provided specific reasons, rooted in the
circumstances of this case, for rejecting the sentence bargain, it did not abuse its
discretion. See In re Morgan, 506 F.3d 705, 711–12 (9th Cir. 2007). The district court
did not plainly err in its statements made pursuant to Federal Rule of Criminal
Procedure 11(c)(5)(B), and Avila -Perez fails to show that any error under Federal Rule
of Criminal Procedure 11(c)(5)(C) affected his substantial rights. See United States v.
Borowy, 595 F.3d 1045, 1049–50 (9th Cir. 2010).
2. Avila-Perez waived his fact-bound objection to the district court’s
application of U.S.S.G. § 4A1.1(d), to which he agreed during sentencing. See United
States v. Hernandez-Ramirez, 254 F.3d 841, 845 (9th Cir. 2001). The district court
sufficiently explained the below-Guidelines-range sentence it imposed. See United
States v. Sandoval-Orellana, 714 F.3d 1174, 1180–81 (9th Cir. 2013). Assuming plain
error, Avila-Perez fails to show the Government’s silence at sentencing affected his
substantial rights. See United States v. Waknine, 543 F.3d 546, 552–53 (9th Cir. 2008).
AFFIRMED.
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