United States v. Eleuterio Lopez

FILED
NOT FOR PUBLICATION MAR 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50527
Plaintiff - Appellee, D.C. No. 2:11-cr-00467-JFW
v.
MEMORANDUM *
ELEUTERIO LOPEZ, a.k.a. Jacinto
Lopez-Corona,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted March 12, 2013 **
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Eleuterio Lopez appeals from the district court’s judgment and challenges
the 120-month sentence imposed following his guilty-plea conviction for aiding
and abetting the distribution of methamphetamine, in violation of 18 U.S.C. § 2(a)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
The government contends that this appeal should be dismissed because
Lopez waived his right to appeal his sentence. We review the enforceability of the
appeal waiver de novo, see United States v. Watson, 582 F.3d 974, 981 (9th Cir.
2009), and decline to enforce it because it is unclear whether the waiver
encompasses the issues Lopez raises on appeal, see id. at 986 (“Plea agreements
are interpreted using contract principles with any ambiguity construed in the
defendant’s favor.”).
Lopez contends that the district court erred in concluding that he was
ineligible for safety-valve relief. We review the district court’s factual
determination of safety-valve eligibility for clear error. See United States v. Mejia-
Pimental, 477 F.3d 1100, 1103 (9th Cir. 2007). The district court did not clearly
err because the record reflects that Lopez failed to give truthful and complete
information about when he became involved in the offense. See 18 U.S.C.
§ 3553(f)(5); Mejia-Pimental, 477 F.3d at 1105.
Lopez also contends that his attorney rendered ineffective assistance by
failing to seek a continuance of the sentencing hearing in order to prove Lopez’s
eligibility for safety-valve relief under 18 U.S.C. § 3553(f). We decline to address
2 11-50527
this contention on direct appeal. See United States v. Benford, 574 F.3d 1228,
1231 (9th Cir. 2009).
AFFIRMED.
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