                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 01 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    15-10481

              Plaintiff-Appellee,                D.C. No. 2:13-cr-01123-SPL-1

 v.
                                                 MEMORANDUM*
ROBERTO GONZALEZ-LOERA,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Steven Paul Logan, District Judge, Presiding

                     Argued and Submitted February 16, 2017
                            San Francisco, California

Before:      TASHIMA and HURWITZ, Circuit Judges, and ADELMAN,**
             District Judge.

      Roberto Gonzalez-Loera (“Gonzalez”) appeals his conviction and sentence

for conspiracy to possess with intent to distribute five kilograms or more of

cocaine and fifty grams or more of methamphetamine in violation of 21 U.S.C.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
§§ 841(a)(1), (b)(1)(A)(ii), and (b)(1)(A)(viii). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      1.      Gonzalez argues that the district court violated Fed. R. Crim. P. 11 by

modifying his plea agreement, but has not shown plain error because he has not

shown that any alleged error affected substantial rights. See United States v. Kyle,

734 F.3d 956, 963, 966 (9th Cir. 2013). Count 1 of the superseding indictment is

identical to count 1 of the original indictment with the addition of four additional

co-conspirators. Gonzalez argues that this addition had the potential to increase his

sentence by expanding the scope of the conspiracy and, thus, the amount of drugs

involved. However, a review of the record shows that the addition of four

additional co-conspirators did not in fact affect the Guidelines range or Gonzalez’s

ultimate sentence. Nor does the evidence suggest that Gonzalez would not have

pled guilty to count 1 of the superseding indictment; on the contrary, his initials by

every insertion of the word “superseding” in the plea agreement indicate that he

intended to plead to that count.

      2.      Gonzalez also raised a double jeopardy challenge. But this challenge

is waived under the valid and binding appellate waiver in Gonzalez’s plea

agreement. See United States v. Hernandez-Guardado, 228 F.3d 1017, 1028 (9th

Cir. 2000).


                                           2
      3.     Gonzalez argues that the court intruded upon the prosecutor’s

charging decision by requiring him to plead to count 1 of the superseding

indictment. But, the government intended him to plead to this count. The

references in the plea agreement to the original indictment were simply and

unintended oversight. Therefore, the court did not force the prosecution to bring “a

charge it did not want to bring.” In re Ellis, 356 F.3d 1198, 1209 (9th Cir. 2004)

(en banc).

      For the foregoing reasons, the judgment of conviction is AFFIRMED.




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