United States v. David Herrera

MEMORANDUM

David Panther Herrera appeals from his guilty-plea conviction and 120-month sentence imposed for unlawful possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Herrera contends that his guilty plea is invalid because the district court did not adequately confirm the factual basis for his plea. The district court did not err pursuant to Fed.R.Crim.P. 11(b)(3) because both Herrera and his counsel agreed with the government’s factual summary. See United States v. Rivera-Ramirez, 715 F.2d 453, 458 (9th Cir.1983); see also United States v. Covian-Sandoval, 462 F.3d 1090, 1093 (9th Cir.2006).

Herrera also contends that the district court violated his constitutional rights by enhancing his sentence pursuant to U.S.S.G. § 2K1.2(b)(4)(B) and (b)(6) based on judge-found facts. The district court did not err because Herrera was not sentenced above the statutory maximum. See United States v. Raygosa-Esparza, 566 F.3d 852, 855 (9th Cir.2009). Herrera’s alternate contention that the district court erred by not applying the clear and convincing evidence standard also lacks merit. See United States v.…