United States v. Efren Ochoa-Gembe

Court of Appeals for the Ninth Circuit · 11-50407 · 2012-09-14 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Efren OCHOA-GEMBE, Defendant-Appellant

Area: other
Panel: Kim M. Wardlaw (author), Smith, Richard R. Clifton

Analysis

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Opinion

FILED NOT FOR PUBLICATION SEP 14 2012

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. 11-50407 Plaintiff - Appellee, D.C. No. 3:09-cr-02916-JLS-1 v. MEMORANDUM * EFREN OCHOA-GEMBE, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding Submitted September 10, 2012 ** Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

Efren Ochoa-Gembe appeals the 235-month sentence imposed following his guilty plea to conspiracy to import methamphetamine and cocaine in violation of * 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). 21 U.S.C. §§ 952, 960, and 963. We have jurisdiction under 28 U.S.C. § 1291, and we dismiss.

Ochoa-Gembe contends that the district court erred by not adequately addressing the disparity between his sentence and those of similarly-situated individuals, and by not sufficiently reducing his sentence for the cooperation he provided. In his written plea agreement, Ochoa-Gembe waived his right to appeal his conviction and sentence unless the district court imposed a sentence higher than the high end of the resulting advisory Guidelines range. The district court sentenced Ochoa-Gembe to the low end of the advisory Guideline range, and as Ochoa-Gembe acknowledged in his opening brief, his “sentence was within the range requiring defendant to waive his appeal.” We conclude that Ochoa-Gembe knowingly and voluntarily agreed to the appellate waiver, and we enforce the appellate waiver. See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir.

2011).

DISMISSED.

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