                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        MAR 25 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50371

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-01299-GPC-1
 v.

IVAN RAMON TIZOC,                               MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   Gonzalo P. Curiel, District Judge, Presiding

                     Argued and Submitted February 12, 2020
                              Pasadena, California

Before: BERZON, TALLMAN, and R. NELSON, Circuit Judges.

      Ivan Tizoc pled guilty to possession and conspiracy to distribute controlled

substances. He now directly appeals his conviction and sentence as a result of the

district court’s decision to defer ruling on Tizoc’s 28 U.S.C. § 2255 petition,

instead vacating and reentering judgment to allow the appeal to proceed pursuant

to United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2005), because



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Tizoc argued that his counsel refused to file an appeal on his behalf. Tizoc raises

two claims on appeal: (1) ineffective assistance of counsel, and (2) government

breach of the plea agreement. We have jurisdiction pursuant to 28 U.S.C. §§ 1291,

1294. We dismiss Tizoc’s claims because the plea agreement precludes direct

appeal and we conclude that there was no breach of the plea agreement.

      The plea agreement Tizoc entered into allowed for a “post-conviction

collateral attack based on a claim of ineffective assistance of counsel,” not a right

to direct appeal, unless the court were to impose a sentence above the guideline

range recommended by the government at sentencing. Because Tizoc’s 200-month

sentence was within the guidelines range of 188 to 235 months recommended by

the goverment, Tizoc has waived his right to a direct appeal of the ineffective

assistance of counsel claim. Nor did the prosecutor breach the plea agreement.

The prosecutor adhered to his duty of candor in answering the court’s questions but

honored his promise to recommend a sentence of 188 months notwithstanding the

court’s concerns. See United States v. Maldonado, 215 F.3d 1046, 1051–52 (9th

Cir. 2000).

      We therefore dismiss this appeal, but with instructions to the district court

that the other grounds originally raised in Tizoc’s 28 U.S.C. § 2255 petition be

decided on remand. Tizoc should not need to file a second or successive § 2255

petition to raise them because the district court never decided the merits of those


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claims.

      DISMISSED and REMANDED with instructions.




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