United States v. Gabriel Valenzuela-Sainz

Court of Appeals for the Ninth Circuit · 08-50561 · 2009-12-14 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Gabriel VALENZUELA-SAINZ, Defendant-Appellant

Area: other
Panel: Arthur L. Alarcon (author), Atsushi W. Tashima, Stephen S. Trott

Analysis

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Opinion

FILED NOT FOR PUBLICATION DEC 14 2009

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. 08-50561 Plaintiff - Appellee, D.C. No. 3:08-cr-02813-LAB v. GABRIEL VALENZUELA-SAINZ, MEMORANDUM * Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted November 17, 2009 ** Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

Gabriel Valenzuela-Sainz appeals from the 60-month sentence imposed following his guilty-plea conviction for importation of cocaine, in violation of 21 U.S.C. §§ 952 and 960. Our jurisdiction is governed by 28 U.S.C. § 1291, and * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

JC/Research we dismiss.

Valenzuela-Sainz contends the district court erred by failing to recommend him to the Bureau of Prisons’ (“BOP”) 500-hour residential treatment program for substance abuse. Authority to determine whether a prisoner enters a residential treatment program resides in the executive branch of the government and is delegated to the BOP. See 18 U.S.C. § 3621(b), (e); see also Downey v. Crabtree, 100 F.3d 662, 666 (9th Cir. 1996) (“[The BOP] has broad discretion over the entire drug-treatment process within the federal corrections system, beginning with determining which inmates ever enter substance-abuse programs.”). Because eligibility and referral to the residential substance abuse treatment program is not within the district court’s authority, we have no jurisdiction to consider Valenzuela-Sainz’s claim on appeal.

DISMISSED.

JC/Research 2 08-50561