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United States v. Hernandez-Castro

United States Court of Appeals, Ninth Circuit

February 25, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ROSA ISELA HERNANDEZ-CASTRO, Defendant-Appellant

Argued and Submitted, San Francisco, California November 20, 2015.

Appeal from the United States District Court for the District of Arizona. D.C. No. 4:13-cr-01577-CKJ-JR-1. Cindy K. Jorgenson, District Judge, Presiding.

SYLLABUS

SUMMARY[**]

Criminal Law

The panel dismissed an appeal from a sentence in a case in which the defendant argues that the government breached her plea agreement, thereby invalidating her appeal waiver.

Reviewing for plain error, the panel held that the government did not breach the plea agreement by not objecting when the district court granted only a two-level departure for fast track instead of the four-level departure set forth in the plea agreement. The panel distinguished United States v. Camarillo-Tello, 236 F.3d 1024 (9th Cir. 2001), because the plea agreement in this case does not indicate that the government " will recommend" the four-level departure, and the government did not alter its recommendation at sentencing. Because the government did not breach the plea agreement, the panel enforced the appellate waiver.

Brenda Dabdoub, Tucson, Arizona, for Defendant-Appellant.

Christina M. Cabanillas (argued), Assistant United States Attorney; John S. Leonardo, United States Attorney; Robert L. Miskell Appellate Chief, Tucson, Arizona, for Plaintiff-Appellee.

Before: Michael J. Melloy,[*] Sandra S. Ikuta, and Andrew D. Hurwitz, Circuit Judges.

OPINION

MELLOY, Circuit Judge:

Rosa Hernandez-Castro appeals her sentence of 46 months after pleading guilty to Conspiracy to Possess with Intent to Distribute Heroin. Hernandez-Castro argues the district court erred by imposing a two-level downward departure under U.S.S.G. § 5K3.1 (fast track), instead of the four-level departure set forth in her Federal Rule of Criminal Procedure 11(c)(1)(C)

Page 1045

plea agreement. Hernandez-Castro further argues the government breached her plea agreement, thereby invalidating her appeal waiver. We reject Hernandez-Castro's arguments, holding the government did not breach her plea agreement. We ...


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