United States v. Victor Manuel Morales-Escobedo

MEMORANDUM

Victor Morales-Escobedo challenges his sentence of 63 months imprisonment for illegal re-entry in violation of 8 U.S.C. § 1326 . He argues that his sentence is illegal because it exceeds the 2-year statutory maximum sentence established by 8 U.S.C. § 1326 (a), and because it is procedurally and substantively unreasonable.

As a threshold matter, we decline to enforce the provision of Mr. Morales’s plea agreement in which he purports to waive his right to appeal. Rule ll(b)(l)(N) of the Federal Rules of Criminal Procedure required the district court to confirm that Mr. Morales understood “the terms of any plea-agreement provision waiving the right to appeal” before accepting his plea. At the plea colloquy, the district court briefly reviewed the plea agreement with Mr. Morales but failed to make any mention of the appellate waiver. Because defense counsel did not object to the district court’s mistake, plain error review applies. See, e.g., United States v. Watson, 582 F.3d 974, 987 (9th Cir.2009) (citing United States v. Ross, 511 F.3d 1233, 1235 (9th Cir.2008); United States v. Arellano-Gallegos, 387 F.3d 794, 796 (9th Cir.2004)). Where, as here, there was a…