United States v. Luis Gonzales-Garcia

FILED
NOT FOR PUBLICATION OCT 03 2013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. 12-10469
Plaintiff - Appellee, D.C. No. 2:12-cr-01204-SRB
v.
MEMORANDUM *
LUIS FERNANDO GONZALES-
GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted September 24, 2013 **
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Luis Fernando Gonzales-Garcia appeals from the district court’s judgment
and challenges the 60-month sentence imposed following his guilty-plea
conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326. We
*
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).
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Gonzales-Garcia contends that the government breached the plea agreement
by failing to move for a three-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1. The government contends that the appeal is barred by a valid
appeal waiver. We review de novo whether a defendant has waived his right to
appeal. See United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009). In the
plea agreement, Gonzales-Garcia waived his right to appeal the judgment and
sentence as long as the “sentence is consistent with this agreement.” Neither the
plea agreement nor the magistrate judge at the change of plea hearing explained
what was meant by this provision. This ambiguity is construed against the
government, see United States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir.
2006), and we hold that Gonzales-Garcia did not knowingly and intelligently
waive his right to appeal.
We review for plain error whether the government breached the plea
agreement because Gonzales-Garcia did not raise the issue of breach in the district
court. See United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir. 2012). Because
Gonzales-Garcia made inconsistent statements to the probation office regarding his
offense, he failed to make a “full and complete disclosure to the Probation Office”
as contemplated by the terms of the plea agreement. Thus, the government was not
2 12-10469
obligated to move for the third point under the plea agreement.
AFFIRMED.
3 12-10469