United States v. Jose Benavides Cristerna

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10315
Plaintiff-Appellee, D.C. No.
2:14-cr-00903-SPL-1
v.
JOSE ANGEL BENAVIDES CRISTERNA, MEMORANDUM*
AKA Jose Benavides,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted February 5, 2019
Phoenix, Arizona
Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.
Jose Benavides Cristerna received a 108-month sentence after pleading guilty
to conspiracy to possess heroin with intent to distribute, 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 846, and conspiracy to commit money laundering, 18 U.S.C.
§§ 1956(a)(1)(B)(I) and 1956(h). We have jurisdiction of his appeal under 28 U.S.C.
§ 1291. Because Benavides entered into a plea agreement with a valid appellate
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
waiver, we dismiss the appeal.
1. The sentencing judge confirmed that Benavides understood he had waived
his right to appeal. The judge’s later admonition—that if Benavides nonetheless
believed he still had a right to appeal, a notice of appeal must be filed timely—did
not vitiate that waiver. Cf. United States v. Felix, 561 F.3d 1036, 1041 (9th Cir.
2009) (finding no waiver despite plea agreement when sentencing judge twice told
defendant unequivocally that he had right to appeal).
2. Nor did any violations of Federal Rule of Criminal Procedure 11 in the
plea colloquy vitiate the plea agreement and appellate waiver. See United States v.
Bibler, 495 F.3d 621, 624 (9th Cir. 2007). Because Benavides did not object to the
Rule 11 colloquy, we review for plain error. United States v. Dominguez Benitez,
542 U.S. 74, 76 (2004). A defendant alleging plain Rule 11 error must establish “a
reasonable probability that, but for the error, he would not have entered the plea.”
Id. at 83; United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015). But,
Benavides does not contend that the challenged omissions in the plea colloquy (at
least one of which the government agrees violated Rule 11) in any way impacted his
decision to plead guilty.1 Cf. United States v. Monzon, 429 F.3d 1268, 1272–74 (9th
1
Although Benavides claimed at sentencing that he expected a sentence of
eight years or less, the colloquy (and the judge’s questioning of counsel at
sentencing) made plain that there was no such agreement and that Benavides
understood he faced a maximum sentence well in excess of eight years.
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Cir. 2005).
3. Benavides’ appellate waiver included an express exception for claims of
ineffective assistance of counsel. We decline to consider those claims on direct
appeal, because the record is not sufficiently developed. United States v. Andrews,
75 F.3d 552, 557 (9th Cir. 1996). Benavides may “pursue the issue in district court
collateral proceedings.” United States v. Rahman, 642 F.3d 1257, 1260 (9th Cir.
2011).
4. Benavides’ attacks on his sentence are barred by the appellate waiver. The
sentencing judge’s statements about “ballistic vests” and “stash houses” were not
demonstrably the basis for the sentence and therefore did not violate due process,
even assuming they were inaccurate. See United States v. McGowan, 668 F.3d 601,
606 (9th Cir. 2012). The sentence imposed was the lowest point of the range
recommended by the presentencing report, and Benavides does not argue that there
was false information in that report. See United States v. Hill, No. 17-35719, slip
op. at 13–14 (9th Cir. Feb. 7, 2019).
APPEAL DISMISSED.
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