USA V. LUIS GONZALES-GARCIA, No. 12-10469 (9th Cir. 2013)
Annotate this Case
Download PDF
FILED OCT 03 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 12-10469 D.C. No. 2:12-cr-01204-SRB v. MEMORANDUM * LUIS FERNANDO GONZALESGARCIA, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding Submitted September 24, 2013 ** Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges. Luis Fernando Gonzales-Garcia appeals from the district court s judgment and challenges the 60-month sentence imposed following his guilty-plea conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326. We * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). have jurisdiction under 28 U.S.C. § 1291, and we affirm. Gonzales-Garcia contends that the government breached the plea agreement by failing to move for a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The government contends that the appeal is barred by a valid appeal waiver. We review de novo whether a defendant has waived his right to appeal. See United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009). In the plea agreement, Gonzales-Garcia waived his right to appeal the judgment and sentence as long as the sentence is consistent with this agreement. Neither the plea agreement nor the magistrate judge at the change of plea hearing explained what was meant by this provision. This ambiguity is construed against the government, see United States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir. 2006), and we hold that Gonzales-Garcia did not knowingly and intelligently waive his right to appeal. We review for plain error whether the government breached the plea agreement because Gonzales-Garcia did not raise the issue of breach in the district court. See United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir. 2012). Because Gonzales-Garcia made inconsistent statements to the probation office regarding his offense, he failed to make a full and complete disclosure to the Probation Office as contemplated by the terms of the plea agreement. Thus, the government was not 2 12-10469 obligated to move for the third point under the plea agreement. AFFIRMED. 3 12-10469
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
