NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 30 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50224

Plaintiff-Appellee, D.C. Nos. 3:20-cr-02880-LAB v.

DANIA HERNANDEZ-GOMEZ, MEMORANDUM*

Defendant-Appellant.

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

Argued and Submitted December 8, 2022 Pasadena, California

Before: KELLY,** M. SMITH, and COLLINS, Circuit Judges. Concurrence by Judge COLLINS.

Defendant-Appellant Dania Hernandez-Gomez pled guilty in a plea

agreement to conspiracy to evade currency reporting requirements under 18 U.S.C.

§ 371 and 31 U.S.C. §§ 5316(a), 5324(c). She appeals from the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. imposition of a 60-month sentence. Our jurisdiction arises under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a).

The parties are familiar with the facts, so we need not restate them here. On

appeal, Ms. Hernandez-Gomez argues that the district court erred by (1) not

sufficiently finding clear and convincing evidence to support a 15-level upward

departure to her Sentencing Guidelines calculation and (2) not offering her the

opportunity to withdraw her guilty plea after “rejecting” her plea agreement, which

was made pursuant to Fed. R. Crim. P. 11(c)(1)(B).

The substantive reasonableness of a sentence is evaluated for an abuse of

discretion, and departures from the guidelines are part of that review. United

States v. Christensen, 828 F.3d 763, 819–20 (9th Cir. 2016). Where a departure

has an extremely disproportionate impact on the sentence, the underlying facts

must be shown by clear and convincing evidence. United States v. Lonich, 23

F.4th 881, 910 (9th Cir. 2022). Considering six nonexhaustive factors, here the 15-

level upward departure had an extremely disproportionate impact on the sentence.

See id. at 910–11. The district court’s factual findings are reviewed for clear error.

United States v. Wijegoonaratna, 922 F.3d 983, 990 (9th Cir. 2019).

Ms. Hernandez-Gomez conceded that clear and convincing evidence existed

by stipulating to and never challenging the 15-level upward departure

recommended in her plea agreement. Even without the concession, the district

2 court thoroughly examined the record to support the 15-level upward departure by

clear and convincing evidence and did not clearly err. The record reflects that Ms.

Hernandez-Gomez had nearly 70 pounds of methamphetamine in a vehicle

registered in her name, changed her story regarding how she acquired the vehicle,

and made frequent trips across the U.S.–Mexico border. The district court did not

abuse its discretion by imposing a 60-month sentence within the applicable

guideline range. See United States v. Carty, 520 F.3d 984, 988 (9th Cir. 2008)

(“[A] correctly calculated Guidelines sentence will normally not be found

unreasonable on appeal.”).

We review a district court’s interpretation of the Federal Rules of Criminal

Procedure de novo. United States v. Garcia-Gonzalez, 791 F.3d 1175, 1180 (9th

Cir. 2015). We review a district court’s interpretation of a plea agreement for clear

error. United States v. Jackson, 21 F.4th 1205, 1213 (9th Cir. 2022). A sentencing

recommendation in a Rule 11(c)(1)(B) (“type B”) plea agreement, such as the one

at issue here, does not bind the court and the defendant has no right to withdraw a

guilty plea if the court declines to follow the recommendation. Fed. R. Crim. P.

11(c)(1)(B); id. 11(c)(3)(B). A court may accept or reject a Rule 11(c)(1)(A)

(“type A”) plea agreement, and if the court rejects it then the court must give the

defendant an opportunity to withdraw the plea. Id. 11(c)(1)(A); id. 11(c)(5).

Here, the district court purported to “reject the plea agreement in this case,”

3 which was expressly type B. Using the word “reject” does not transform a non-

binding type B plea agreement into a binding one that requires the court to give the

defendant an opportunity to withdraw. The written plea agreement stated that it

“embodie[d] the entire agreement between the parties” and affirmed that no outside

promises were made. Even assuming that the district court erred when it

“rejected” the plea agreement and did not give Ms. Hernandez-Gomez the

opportunity to withdraw her plea, the court still sentenced her pursuant to the

charge to which she pled guilty and followed the sentencing recommendations in

the plea agreement. Again, Ms. Hernandez-Gomez stipulated to a 15-level upward

departure in the plea agreement and never challenged it. Ms. Hernandez-Gomez

has made no showing that she would have withdrawn her guilty plea if given the

chance to do so. Ms. Hernandez-Gomez received everything she bargained for,

and more, because the district court provided her a right to appeal that she

otherwise waived in her plea agreement. Thus, even if there was error, it was

harmless.

AFFIRMED.

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FILED

United States v. Hernandez-Gomez, No. 21-50224 JAN 30 2023

MOLLY C. DWYER, CLERK

COLLINS, Circuit Judge, concurring in the judgment: U.S. COURT OF APPEALS

I concur in the judgment of affirmance, but my reasoning differs somewhat

from the majority’s.

Pursuant to a written plea agreement, Dania Hernandez-Gomez pleaded

guilty to a superseding information alleging a single charge of conspiracy, under

18 U.S.C. § 371, to evade currency reporting requirements in violation of 31

U.S.C. §§ 5316(a), 5324(c). In her plea agreement, she stipulated that “the parties

would jointly recommend,” inter alia, “the following . . . Departure[]” from the

otherwise applicable base offense level under the U.S. Sentencing Guidelines

(“U.S.S.G.”)—namely, a 15-level increase for “Dismissed/Uncharged Conduct”

under U.S.S.G. § 5K2.21. That increase was based on the more than 32 kilograms

of methamphetamine found in Hernandez-Gomez’s car when she entered the

United States. That importation was the subject of a still-pending earlier

information alleging importation of methamphetamine in violation of 21 U.S.C.

§§ 952, 960. See United States v. Pacheco, 912 F.2d 297, 305 (9th Cir. 1990) (“An

original indictment remains pending until it is dismissed or until double jeopardy

or due process would forbid prosecution under it.”). Given that the importation

offense against Hernandez-Gomez had been charged and was pending, the plea

agreement’s reference to it as “Dismissed/Uncharged Conduct” clearly reflected an agreement that the original information would be dismissed at sentencing—which

it was. The plea agreement further provided that Hernandez-Gomez could argue

for “additional downward adjustments, departures, or variances” from the

U.S.S.G., and the Government reserved the right to oppose them. The agreement

also stated, however, that, because the agreement was “made pursuant to Federal

Rule of Criminal Procedure 11(c)(1)(B),” the district court was not bound by the

parties’ sentencing recommendations and that Hernandez-Gomez could not

withdraw her plea if the court did not follow them. The plea agreement also

recited that Hernandez-Gomez waived “all rights to appeal and to collaterally

attack every aspect of the conviction and sentence,” except for claims of

ineffective assistance of counsel.

With the agreed-upon 15-level upward departure, the base offense level was

25, and the guidelines range was 57–60 months (taking into account the statutory

maximum sentence of five years). At sentencing, the district court expressed

frustration with the plea agreement, with the “charge bargain” reflected in it, and

with the Government’s recommendation of a 46-month sentence. Although the

court stated that it “reject[ed] the plea agreement,” the court (1) followed the

agreement’s stipulated calculations; (2) rejected the parties’ requests for a sentence

outside that range; (3) imposed a 60-month sentence; and (4) granted the

Government’s motion to dismiss the underlying information. As to the latter, the

2 court stated that it “had no discretion on that” and “ha[d] to grant it.” Nonetheless,

because the court stated that it had rejected the plea agreement, the court agreed

with defense counsel that Hernandez-Gomez was released from her plea

agreement’s appeal waiver.

Hernandez-Gomez now appeals, arguing that there was insufficient evidence

to support the 15-level upward departure and that she should have been allowed to

withdraw her guilty plea. Both of these arguments, like her taking of the appeal

itself, seem unavoidably to rest on the position (1) that her plea agreement was in

part a charge-bargain agreement under Federal Rule of Criminal Procedure

11(c)(1)(A); (2) that, when the district court “rejected” that agreement, its

provisions were no longer binding; and (3) that she should have been given an

opportunity to withdraw her plea under Rule 11(c)(5)(B).

Although the plea agreement stated that it was made under Rule

“11(c)(1)(B),” the applicability of the rules ultimately turns on the substance of the

plea agreement, and not its labels. Cf. FED. R. CRIM. P. 11(h) (“A variance from

the requirements of this rule is harmless error if it does not affect substantial

rights.”). For the reasons I have explained, I think it is quite clear that the plea

agreement reflected the parties’ agreement that the original information would be

dismissed. Had the Government, at the end of the sentencing hearing, declined to

dismiss the original information and instead announced an intention to proceed on

3 that document or on a forthcoming indictment on the same charge, I have no doubt

whatsoever that that would have been a clear breach of this plea agreement. So

Hernandez-Gomez’s plea agreement was at least in part a charge-bargain

agreement under Rule 11(c)(1)(A). But it was also an agreement under Rule

11(c)(1)(B), because it additionally contained specific agreed-upon sentencing

recommendations that were not binding upon the court. The Advisory Committee,

in fashioning Rule 11, expressly contemplated such hybrid agreements. See FED.

R. CRIM. P. 11, advis. comm. note (1979 amend.).

Although the Government agrees that Hernandez-Gomez “would be entitled

to a remand” if her plea agreement was under Rule 11(c)(1)(A), I disagree. Once

again, the application of Rule 11 turns on substance, not labels. Although the

district court announced that it “rejected” the plea agreement, it unambiguously

held that it was bound to grant the Government’s motion to dismiss the original

information, and it did so. The district court thus did not “reject” the plea

agreement in any sense that is relevant to Rule 11(c)(1)(A)’s application. In

describing the consequences of a “reject[ion]” within the meaning of Rule

11(c)(1)(A), the rule states that the court must “advise the defendant personally

that the court is not required to follow the plea agreement and give the defendant

an opportunity to withdraw the plea.” See FED. R. CRIM. P. 11(c)(5)(B) (emphasis

added). The rule thus contemplates that the sort of “reject[ion]” that triggers these

4 consequences in this context is one in which the court is “not required to follow the

plea agreement” with respect to the agreed-upon dismissal of charges, and it is then

that the court must provide the two specified advisals. See FED. R. CRIM. P. 11,

advis. comm. note (1979 amend.) (stating that the court’s options concerning the

charge-bargain portion of a plea agreement are “either [1] accept the agreement to

dismiss these counts or [2] else reject it and allow the defendant to withdraw his

plea” (emphasis added)). Because the district court here accepted that it was

obligated to dismiss the original information, and did so, it did not “reject” the

Rule 11(c)(1)(A) aspect of Hernandez-Gomez’s plea agreement in the sense

contemplated by that rule. The agreement therefore remained fully binding, and

the district court had no obligation under Rule 11(c)(5)(B) to advise Hernandez-

Gomez of a right to withdraw her plea.

As to the Rule 11(c)(1)(B) portion of the agreement, the district court was

not bound by the parties’ stipulations as reflected in the agreement, but it

nonetheless followed them and selected a sentence within the resulting guidelines

range. Hernandez-Gomez has not contended that the district court’s actions in that

regard give rise to any right to withdraw her plea.

Accordingly, Hernandez-Gomez received exactly what she bargained for in

her plea agreement, and she remains fully bound by it. Even assuming arguendo

5 that she was nonetheless entitled under our caselaw to pursue this appeal,1 her

arguments on that appeal must be consistent with that agreement. And since she

expressly stipulated to the 15-level increase in her base offense level, she cannot

now be heard to attack it. And even if she could, the district court did not clearly

err in finding that there was a sufficient factual basis for such a departure here.

For these reasons, I concur in the court’s judgment affirming Hernandez-

Gomez’s conviction and sentence.

1 The Government concedes that, under United States v. Buchanan, 59 F.3d 914 (9th Cir. 1996), the district court’s oral statement at sentencing that Hernandez- Gomez had a right to appeal renders the appeal waiver in the plea agreement “not enforceable.” Id. at 918; see also United States v. Felix, 561 F.3d 1036, 1040–41 (9th Cir. 2009) (stating that Buchanan rests on the theory that the Government waives reliance on the appeal waiver if it fails immediately to object to the district court’s comment). Buchanan has been subject to a “chorus of criticism” in our sister circuits, see United States v. Fleming, 239 F.3d 761, 765 (6th Cir. 2001), and in an appropriate case, the en banc court should eliminate that circuit split by overruling Buchanan.

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