United States v. Juan Cruz-Valdivia

FILED

NOT FOR PUBLICATION APR 29 2013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. 12-50177

Plaintiff - Appellee, D.C. No. 3:11-cr-05188-LAB-

v.

MEMORANDUM *

JUAN MANUEL CRUZ-VALDIVIA,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted March 8, 2013 Pasadena, California

Before: PAEZ and WATFORD, Circuit Judges, and CONLON, District Judge.**

Juan Manuel Cruz-Valdivia (“Cruz”) challenges his 70-month sentence. He

contends that the district court erred in declining his offer to waive his right to

appeal in exchange for a sentence not exceeding 48 months; that the government

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Suzanne B. Conlon, United States District Judge for the Northern District of Illinois, sitting by designation. breached his plea agreement by not vigorously supporting…

dissenting:

The uncontested presentenee report reflected that Juan Manuel Cruz-Valdivia (“Cruz”) had an extensive criminal record spanning over 25 years. The more serious convictions were not counted in calculating his criminal history category due to the age of the offenses: possession of heroin for sale (1975); multiple burglaries where a stolen shotgun and burglary tools were also found in his car (1982); possession of cocaine and driving under the influence of intoxicants (1994); possession of a stolen vehicle on the same day the vehicle was reported stolen (1994); possession of cocaine, marijuana, scales, drug records, and syringes (1995); and disorderly conduct and providing false identification to Oregon law enforcement (1997).

Cruz was deported after serving varying jail or prison terms for each of these offenses with the exception of the last. He repeatedly returned illegally to the United States to commit another crime. It is undisputed he used 33 alias names, six different dates of birth, and five different social security numbers, presumably to conceal his illegal status from authorities.

Cruz’s first conviction for illegal reentry of a deported alien under 8 U.S.C.…

MEMORANDUM **

Juan Manuel Cruz-Valdivia (“Cruz”) challenges his 70-month sentence. He contends that the district court erred in declining his offer to waive his right to appeal in exchange for a sentence not exceeding 48 months; that the government breached his plea agreement by not vigorously supporting an agreed recommendation of 21 months; and that the imposition of a 70-month sentence was unreasonable. We have jurisdiction under 28 U.S.C. § 1291 .

1. The district court did not err in refusing to negotiate Cruz’s sentence in exchange for an appellate waiver. District *737 judges are prohibited from participating in plea discussions. Fed.R.Crim.P. 11(c)(1). This bright-line rule minimizes the risk of coercion, protects the integrity of the judicial process, and preserves a judge’s impartiality. United States v. Bruce, 976 F.2d 552, 556-57 (9th Cir.1992). The same policy considerations are implicated if a judge bargains for an appellate waiver in exchange for a sentencing promise. United States v. Gonzalez-Melchor, 648 F.3d 959, 963-65 (9th Cir.2011).

2. “Courts enforce the literal terms of a plea agreement,” United States v. Ellis, 641 F.3d 411, 417 (9th Cir.2011), and here…