United States v. Pacheo-Navarette

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 04-10396
v.  D.C. No.
CR-03-01029-3-
RAFAEL PACHECO-NAVARETTE, NVW
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 04-10442
Plaintiff-Appellee, D.C. No.
v.  CR-03-01029-1-
VICTOR ALFONSO GOMEZ-VERA, (NVW)
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted October 18, 2005*
San Francisco, California
Filed December 23, 2005
Before: Dorothy W. Nelson, Johnnie B. Rawlinson, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge D.W. Nelson
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
16675
UNITED STATES v. PACHECO-NAVARETTE 16677
COUNSEL
Michael D. Gordon, Federal Public Defender’s Office, Phoe-
nix, Arizona, for defendant-appellant Rafael Pacheco-
16678 UNITED STATES v. PACHECO-NAVARETTE
Navarette and Atmore L. Baggot, Apache Junction, Arizona,
for defendant-appellant Victor Alfonso Gomez-Vera.
Michael Allen Lee, Assistant United States Attorney, Phoe-
nix, Arizona, for the plaintiff-appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Rafael Pacheco-Navarette (“Pacheco”) and Victor Gomez-
Vera (“Gomez”) appeal their convictions and sentences fol-
lowing each appellant’s guilty plea to being an alien in pos-
session of a firearm in violation of 18 U.S.C. §§ 922(g)(5) and
924(a)(2). Principally, appellants argue that their appeal waiv-
ers are invalid. We must also consider whether to remand in
light of Booker and Ameline. We dismiss the appeals for lack
of jurisdiction.
FACTUAL BACKGROUND
Pacheco and Gomez pled guilty to violations of 18 U.S.C.
§§ 922(g)(5) and 924(a)(2) because of their possession of fire-
arms to perpetrate various crimes related to trafficking illegal
aliens from Mexico to Arizona between August and Septem-
ber 2003.
Appellants entered pleas of guilty pursuant to virtually
identical plea agreements that stipulated sentences of 120
months, the statutory maximum. They also stipulated to the
upward departures required to reach the negotiated sentence
under the United States Sentencing Guidelines (“Guide-
lines”), and waived “any right to raise on appeal or collater-
ally attack any matter pertaining to this prosecution and sen-
tence.” In return for appellants’ pleas, the government agreed
to dismiss additional counts in the indictment and to refrain
from charging them with additional, more serious, offenses.
UNITED STATES v. PACHECO-NAVARETTE 16679
After standard change of plea hearings, presentence reports
were prepared, recommending the upward departures and ulti-
mate sentences stipulated in the plea agreements. Citing
Blakely v. Washington, 542 U.S. 296 (2004), Pacheco
objected to his presentence report, arguing that the sentence
enhancements contained therein could not be imposed unless
they were submitted to a jury. However, Pacheco also con-
ceded that his objections would have “no practical effect on
the sentence, as [he] stipulated in his plea agreement to the
statutory maximum sentence of ten (10) years.”1
Appellants were sentenced in accordance with their plea
agreements.
DISCUSSION
I. Validity of Pacheco’s Guilty Plea
Pacheco challenges the validity of his guilty plea because
the district court failed to advise him of his right to have a
jury determine the facts upon which any sentence enhance-
ments under the Guidelines were predicated, a right recog-
nized by United States v. Booker, 543 U.S. ___, 125 S. Ct.
738 (2005). We review the adequacy of a guilty plea colloquy
de novo. United States v. Villalobos, 333 F.3d 1070, 1073 (9th
Cir. 2003).
[1] Federal Rule of Criminal Procedure 11 obligated the
district court to describe to Pacheco the consequences of his
plea that had “a definite, immediate and largely automatic
effect on the range of [his] punishment.” United States v. Lit-
1
At sentencing, Pacheco could have moved to withdraw his guilty plea
for the “fair and just reason” of an intervening Supreme Court decision.
See United States v. Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004). He did
not do so. Instead, noting the change in law after Blakely, Pacheco’s attor-
ney declared, “[Pacheco] does not wish to withdraw from the plea agree-
ment. He wishes you to sentence him in accordance to [sic] it . . . .”
16680 UNITED STATES v. PACHECO-NAVARETTE
tlejohn, 224 F.3d 960, 965 (9th Cir. 2000) (citation omitted).
Clearly, potential changes in the law did not have such an
effect on Pacheco’s ultimate sentence. Pacheco cannot, now,
claim that his guilty plea was rendered involuntary or
unknowing because of the district court’s colloquy, which, at
the time it was given, correctly stated his rights.
[2] Thus, we hold that a guilty plea colloquy is not deficient
solely because the district court did not advise a defendant of
rights established by subsequent judicial decisions or changes
in the law. Cf. Littlejohn, 224 F.3d at 967-68 (finding no error
where the district court had no knowledge or reason to know
of defendant’s prior convictions at the time of plea hearing,
so failed to advise defendant that his sentence could be
enhanced based on those convictions). Although Pacheco’s
claim raises an issue of first impression, our conclusion is the
natural result of well-established law stating that substantive
changes in the law do not invalidate guilty pleas. Brady v.
United States, 397 U.S. 742, 756-758 (1970) (holding that the
Constitution does not require invalidation of guilty pleas
“simply because it later develops that the State would have
had a weaker case than the defendant had thought or that the
maximum penalty then assumed applicable has been held
inapplicable in subsequent judicial decisions”); United States
v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005) (noting that
“a change in the law does not make a plea involuntary and
unknowing”) (citing United States v. Johnson, 67 F.3d 200,
202-03 (9th Cir. 1995)).
If a guilty plea is not rendered involuntary or unknowing
because of subsequent changes in the law, it necessarily fol-
lows that a guilty plea cannot be invalidated because the court
did not inform a defendant of those then-nonexistent rights.
Any other result would force district courts to anticipate all
possible changes in the law. Moreover, it would vitiate the
decisions in Brady and Johnson because every defendant
claiming his plea was involuntary or unknowing because of a
subsequent change in the law would also have the claim that
UNITED STATES v. PACHECO-NAVARETTE 16681
the guilty plea colloquy was deficient for failing to inform
him of that change.
II. Validity of Appellants’ Appeal Waivers
Pacheco and Gomez also argue that their appeal waivers
are invalid; we review such claims de novo. United States v.
Bynum, 362 F.3d 574, 583 (9th Cir. 2004).
Gomez argues that his plea agreement should not have been
accepted, so his appeal waiver is necessarily invalid. He
argues that the district court should not have accepted the plea
agreement into which he entered because it constituted imper-
missible “double counting” by stipulating upward adjustments
and upward departures under the Guidelines based upon the
same factors.
[3] Gomez’s argument rests on the false premise that stipu-
lated sentences must comport with the Guidelines. Even
before Booker, this court accepted implicitly that stipulated
sentences could fall outside the otherwise applicable Guide-
line range. See United States v. Mukai, 26 F.3d 953; 955-56
(9th Cir. 1994) (requiring the district court to accept or reject
a sentencing arrangement outside of the Guidelines, but not
modify it). We accept this proposition explicitly: as the
Guidelines are advisory only, see Booker, 543 U.S. at ___,
125 S. Ct. at 764-65, there can be no reasonable argument that
the court does not have the authority to accept a stipulated
sentence that does not comport with them. Accord United
States v. Cieslowski, 410 F.3d 353, 363 (7th Cir. 2005) (stat-
ing that “if there was any doubt whether a court may impose
a sentence outside of the Sentencing Guideline range, that
doubt has been erased by the Supreme Court’s recent decision
in [Booker], which rendered the Sentencing Guidelines advi-
sory only”); United States v. Bundy, 359 F. Supp. 2d 535, 538
(W.D. Va. 2005).
[4] Moreover, it is within the sound discretion of the dis-
trict court to reject or accept any plea agreement. See United
16682 UNITED STATES v. PACHECO-NAVARETTE
States v. Barker, 681 F.2d 589, 592 (9th Cir. 1982). Gomez’s
plea agreement was within statutory parameters and the
record demonstrates that the district court considered and was
satisfied with the reasons for the stipulation to the maximum
possible sentence. We cannot, therefore, conclude that the dis-
trict court abused that discretion.
Pacheco argues that, as a result of the Supreme Court’s
decision in Booker, he could not have waived his appeal right
“knowingly and voluntarily,” which is required to uphold a
waiver, see, e.g., United States v. Nguyen, 235 F.3d 1179,
1182 (9th Cir. 2000). This argument is precluded by our opin-
ion in Cardenas, which held that the change in the law
effected by Booker did not render unknowing or involuntary
a prior appeal waiver. Cardenas, 405 F.3d at 1048.2
[5] Therefore, “our inquiry into the validity of the waivers
is at an end.” Nguyen, 235 F.3d at 1182. The valid waivers bar
appellants’ underlying challenges to their convictions and
sentences, and we must dismiss their appeals. Id.
III. Remand Pursuant to Booker and Ameline
Finally, appellants ask us to remand their cases to the dis-
trict court in light of Booker and United States v. Ameline,
409 F.3d 1073, 1074 (9th Cir. 2005) (en banc). As the deci-
sions in Booker and Ameline could not affect the district
court’s determination at re-sentencing, remand is unnecessary.
[6] Pacheco and Gomez were each sentenced outside of the
Guidelines pursuant to a negotiated plea agreement. The pro-
visions of the Guidelines relating to plea agreements—
U.S.S.G. §§ 6B1.1-4, p.s.—are policy statements only. The
binding law is (and was then) Federal Rule of Criminal Proce-
2
Pacheco also argues that, because his guilty plea was invalid, his
appeal waiver is necessarily invalid as well. However, since his guilty plea
was valid, this argument fails.
UNITED STATES v. PACHECO-NAVARETTE 16683
dure 11(c)(1)(A) and (C). Moreover, the district court is not
permitted to deviate from the sentences stipulated in such
agreements. See, e.g., Mukai, 26 F.3d at 955. Neither Booker
nor Ameline has any bearing on these rules.
That the plea agreements stipulated (and the district court
evaluated) upward departures is inapposite because the stipu-
lated sentences were not based on the Guidelines. The parties
determined that the defendants’ acceptance of the maximum
statutory sentence was the appropriate concession for the gov-
ernment’s forbearance to prosecute. Any reference to the
Guidelines was designed to make those prior determinations
fit into what the parties believed was a mandatory scheme.
Indeed, at Pacheco’s sentencing hearing the government
explained,
“we also wanted to provide a basis that the Court
could make its determination to accept the upward
departure more than simply the Government is not
going to file these other charges. We wanted the
Court to have a separate basis [to accept the 120-
month sentence]. . . . But in essence . . . that was an
afterthought . . . .”
[7] We conclude that, where a defendant was sentenced
after pleading guilty pursuant to a plea agreement that
included a specific sentence stipulation that did not exceed the
statutory maximum and was not contingent upon the Guide-
lines, remand is not required to comport with Booker and Ame-
line.3 Accord United States v. Silva, 413 F.3d 1283, 1284
(10th Cir. 2005); Cieslowski, 410 F.3d at 364 (“A sentence
imposed under a Rule 11(c)(1)(C) plea arises directly from
the agreement itself, not from the Guidelines . . . . As Booker
3
We need not determine whether or to what extent a plea agreement
containing a stipulation of a particular Guideline range or a sentence oth-
erwise based or contingent upon the Guidelines must comport with the
Guidelines, as that situation is not before us.
16684 UNITED STATES v. PACHECO-NAVARETTE
is concerned with sentences arising under the Guidelines, it is
inapplicable in this situation.”). We further note that, even if
appellants could avail themselves of the protections afforded
by Booker and Ameline, their “express and generally unre-
stricted waiver[s] of appeal rights foreclose[ ] the objections
now asserted . . . pursuant to Booker or Ameline.” United
States v. Cortez-Arias, 403 F.3d 1111, 1114 n.8, as amended,
425 F.3d 547, 548 (9th Cir. 2005).
CONCLUSION
Appellants knowingly and voluntarily entered guilty pleas
pursuant to plea agreements they negotiated to avoid prosecu-
tion for more serious offenses. In exchange for the govern-
ment’s forbearance, appellants agreed to serve the maximum
sentence allowed by 18 U.S.C. § 924(a)(2). Nothing about the
process was irregular, unlawful, or unconstitutional. We,
therefore, lack jurisdiction to hear their claims.
DISMISSED.