                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 30 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50463

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-00336-JAH-2
 v.

MIGUEL DUQUE HURTADO                            MEMORANDUM*
SIMISTERRA,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    16-50467

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-00336-JAH-1
 v.

WINSTON GABRIEL VALDEZ-MEDINA,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    16-50470

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-00336-JAH-3
 v.

LEONARDO ABAD BUENO-SAENZ,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                       Argued and Submitted March 7, 2018
                              Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,** Chief
District Judge.

      Miguel Hurtado Simisterra, Winston Valdez-Medina, and Leonardo Bueno-

Saenz, (collectively “Appellants”), each appeal their 90-month sentence imposed

following their guilty pleas to possession of cocaine with intent to distribute on

board a vessel, in violation of 46 U.S.C. § 70503.

      The Government argues that this appeal is barred by Appellants’ appeal

waiver, a condition in their respective plea agreements. However, we have

recognized that an appeal waiver cannot bar a constitutional challenge. See United

States v. Torres, 828 F.3d 1113, 1124–25 (9th Cir. 2016); see also United States v.

Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (recognizing that an appeal waiver will

not be enforced where the sentence imposed is illegal or unconstitutional).

Because Appellants raise a constitutional challenge to their sentences, the appeal



      **
             The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.

                                          2                                    16-50463
waiver does not bar their appeal.

      Appellants argue that their equal protection and due process rights were

violated when the district court arbitrarily sentenced their co-defendant, Jhon Salos

Garcia to a sentence of only 70-months imprisonment. Because Appellants do not

allege any disparate treatment on the basis of a suspect or quasi-suspect

classification, the sentencing disparity need only survive rational basis review. See

Chapman v. United States, 500 U.S. 453, 465 (1991) (applying rational basis

review to defendant’s equal protection challenge that statutory drug-weight

calculation for sentencing purposes was arbitrary); see also United States v. Ruiz-

Chairez, 493 F.3d 1089, 1091–92 (9th Cir. 2007) (applying rational basis review to

defendant’s equal protection challenge that the sentencing guidelines arbitrarily

applied to illegal reentrants).

      We conclude that the district court had a rational basis for the sentences it

imposed on Appellants. At sentencing, the Government claimed that co-defendant

Salos Garcia deserved a lower sentence than Appellants because he had

demonstrated a “super acceptance of responsibility” by asking for one year longer

than the mandatory minimum, in accord with the Government’s side deal. Though

the side deal was available to each Appellant, only Salos Garcia accepted it. Salos

Garcia’s attorney characterized this as the exercise of good judgment based on the

“realities” of the offense. The district court agreed that this “super acceptance of


                                          3                                    16-50463
responsibility” warranted a shorter sentence than the Appellants and sentenced

accordingly. We conclude this decision is rational and affirm.

      AFFIRMED.




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