NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 27 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10250

Plaintiff-Appellee, D.C. No. 1:19-cr-00161-DAD-BAM-1 v.

HECTOR MANUEL GOMEZ MEMORANDUM*

RODRIGUEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Argued and Submitted December 14, 2023 San Francisco, California

Before: KOH, H.A. THOMAS, and DESAI, Circuit Judges.

Mr. Gomez Rodriguez pled guilty to conspiracy to manufacture over 1,000

marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 846 after being arrested

during a marijuana grow site raid. As part of his plea agreement, he agreed to an

appellate waiver. At the end of his sentencing hearings, the district court found that

Mr. Gomez Rodriguez was ineligible for a safety valve exemption from the statutory

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. mandatory minimum sentence, 18 U.S.C. § 3553(f)(2), because he had possessed a

firearm at the grow site. The court sentenced him to a mandatory minimum term of

120 months with a five-year supervised release period. On appeal, Mr. Gomez

Rodriguez challenges his sentence and asserts that the appellate waiver does not

apply. We have jurisdiction under 18 U.S.C. § 3742. We dismiss in part and affirm

in part.

We review whether a defendant has waived his right to appeal by plea

agreement de novo. United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004). We

typically review the constitutionality of a sentence de novo. United States v.

Hungerford, 465 F.3d 1113, 1116 (9th Cir. 2006). But when a defendant raises an

issue for the first time on appeal, we review for plain error. See United States v.

Olano, 507 U.S. 725, 731 (1993).

1. We dismiss Mr. Gomez Rodriguez’s appeal in part because he

knowingly and voluntarily agreed to the plea agreement, and the plain language of

the agreement includes a waiver of his right to appeal his sentence. See Davies v.

Benov, 856 F.3d 1243, 1246–47 (9th Cir. 2017) (“A defendant’s waiver of his rights

to appeal . . . is generally enforced if (1) the language of the waiver encompasses his

right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily

made” (internal citation omitted)). Although an appellate waiver does not prevent

challenges to “illegal” sentences, United States v. Torres, 828 F.3d 1113, 1125 (9th

2 Cir. 2016), a sentence is only “illegal if it exceeds the permissible statutory penalty

for the crime or violates the Constitution,” United States v. Bibler, 495 F.3d 621,

624 (9th Cir. 2007).1 Therefore, this exception does not permit Mr. Gomez

Rodriguez to appeal the district court’s refusal to apply the safety valve statute to his

sentence. See United States v. Wells, 29 F.4th 580, 585 (9th Cir. 2022) (declining to

extend meaning of “illegal sentence” to encompass sentences potentially violating

18 U.S.C. § 3553). The exception does, however, cover his constitutional claim that

his sentence violates the Eighth Amendment. See id. at 587. Accordingly, we dismiss

Mr. Gomez Rodriguez’s safety valve claim, but reach the merits of his constitutional

claim.

2. The district court’s sentence does not violate the Eighth Amendment.

The Eighth Amendment forbids sentences that are “grossly disproportionate” to the

crime. Graham v. Florida, 560 U.S. 48, 59–60 (2010). When a defendant challenges

his sentence, we first compare “the gravity of the offense to the severity of the

sentence.” United States v. Hammond, 742 F.3d 880, 884 (9th Cir. 2014) (quoting

United States v. Williams, 636 F.3d 1229, 1232 (9th Cir. 2011)). If the initial

comparison “leads to an inference of gross disproportionality,” we then “compare

1 Mr. Gomez Rodriguez asks us to interpret “illegal sentence” to include a sentence which is based on a finding of safety valve ineligibility, but our circuit’s precedent forecloses us from doing so. See United States v. Wells, 29 F.4th 580, 585 (9th Cir. 2022); United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999).

3 the defendant’s sentence with the sentences received by other offenders in the same

jurisdiction and with the sentences imposed for the same crime in other

jurisdictions.” Id. (quoting Graham, 560 U.S. at 60).

Here, the first step of the analysis is dispositive. Mr. Gomez Rodriguez was

involved in growing 4,494 marijuana plants that damaged federal land, and the

district court imposed the mandatory minimum sentence under 21 U.S.C. §

841(b)(1)(A)(vii). As applied to Mr. Gomez Rodriguez’s offense, the sentence

imposed does not give rise to “an inference of gross disproportionality,” Hammond,

742 F.3d at 884 (quoting Graham, 560 U.S. at 60), especially considering the

“substantial deference” we grant to Congress’s authority in determining the

punishments for federal crimes, Solem v. Helm, 463 U.S. 277, 290 (1983); see also

United States v. Albino, 432 F.3d 937, 938 (9th Cir. 2005) (per curiam).

We DISMISS in part and AFFIRM in part.

4