United States v. Leandro Regalado

FILED
NOT FOR PUBLICATION OCT 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50139
Plaintiff-Appellee, D.C. No. 3:14-cr-01753-BAS
v.
MEMORANDUM*
LEANDRO FELIPE REGALADO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted September 27, 2016**
Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
Leandro Felipe Regalado appeals from the district court’s judgment and
challenges his guilty-plea conviction for importation of cocaine, in violation of 21
U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291, and we
dismiss.
*
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).
Regalado contends that the district court erred by not sua sponte offering
him an opportunity to withdraw his guilty plea after the parties discovered that the
pre-plea criminal history report had mistakenly concluded that he was not a career
offender. The government responds that the appeal waiver in Regalado’s plea
agreement bars this appeal. Reviewing de novo, see United States v. Watson, 582
F.3d 974, 981 (9th Cir. 2009), we conclude that the waiver is enforceable.
Regalado first contends that the waiver is unenforceable because the parties’
mutual mistake of fact rendered his plea involuntary. The written plea agreement
expressly stated that Regalado could be found to be a career offender and
explained the effect that would have on the calculation of his Guidelines range.
Additionally, at the change of plea hearing, the district court informed Regalado
that the Guidelines calculation could be different from counsel’s estimate and that
the choice of sentence was within the court’s sole discretion. Finally, Regalado
never sought to withdraw his plea in the district court, even after he learned of the
mistake regarding his career offender status. On these facts, we conclude that
Regalado’s plea was knowing and voluntary.
Regalado next contends that the appeal waiver is unenforceable because the
district court violated Federal Rule of Criminal Procedure 11(b)(1)(N) by failing to
confirm that he understood the terms of his waiver. We review for plain error, see
2 15-50139
United States v. Ma, 290 F.3d 1002, 1005 (9th Cir. 2002), and find none. The
court explained to Regalado that he was waiving his right to appeal even if “you
don’t like the sentence that I ultimately give you.” Regalado confirmed that he
understood. Even if the court erred by failing to recite the terms of the waiver
more specifically, that error did not effect Regalado’s substantial rights. See id.DISMISSED.
3 15-50139