                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 08 2011

                                                                        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. 09-50588

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00479-AHM-1

  v.
                                                 MEMORANDUM *
CURTIS D. SOMOZA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                     A. Howard Matz, District Judge, Presiding

                      Argued and Submitted October 13, 2011
                               Pasadena, California

Before: PREGERSON and BYBEE, Circuit Judges, and DAVIDSON, Senior
District Judge.**

       Curtis D. Somoza (“Somoza”) appeals his conviction and 300 month

sentence for conspiracy, mail fraud, wire fraud, and transactional money




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Glen H. Davidson, Senior District Judge for the U.S.
District Court for the Northern District of Mississippi, sitting by designation.
laundering—as well as the imposition of criminal forfeiture—arising from his

operating a large Ponzi scheme. We affirm.

      The district court did not abuse its discretion in denying Somoza’s motion to

withdraw his guilty plea. See United States v. Showalter, 569 F.3d 1150, 1154 (9th

Cir. 2009). To successfully withdraw a guilty plea before sentencing, a defendant

must “show a fair and just reason” for doing so. Fed. R. Crim. P. 11(d)(2)(B). See

Showalter, 569 F.3d at 1154. The district court properly apprised Somoza of how

and when he could bring an ineffective assistance of counsel claim against his

then-attorney Edward Robinson. Additionally, Somoza was not coerced by any

party into pleading guilty, and he fully understood the nature of his plea. Thus,

Somoza did not present a fair and just reason for withdrawing his plea.

      By pleading guilty, Somoza waived his claim that the district court erred in

denying his motion to substitute counsel. An unconditional guilty plea waives “the

right to appeal all non-jurisdictional antecedent rulings and cures all antecedent

constitutional defects.” United States v. Foreman, 329 F.3d 1037, 1038 (9th Cir.

2003) (internal quotation marks omitted), overruled on other grounds by United

States v. Jacobo Castillo, 496 F.3d 947, 949 (9th Cir. 2007) (en banc). Thus, this

court lacks jurisdiction over Somoza’s claim that the district court erred in denying

his motion for substitute counsel.


                                          2
      The district court imposed a sentence which was procedurally and

substantively reasonable. A court may only set aside a sentence if it is

“procedurally erroneous or substantively unreasonable.” United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008). The district court correctly found that Somoza

did not merit a downward variance in his sentence based on the seriousness of his

offense, that Somoza’s sentence did not produce an unwarranted sentencing

disparity, and that Somoza had defrauded over fifty victims of approximately $44

million dollars. Moreover, the district court did not give improper weight to its

determination that Somoza’s sentence should promote public recognition of the

evils of Ponzi schemes. The district court properly considered the 18 U.S.C. §§

3553(a)(2)(A)-(a)(2)(C) sentencing factors and crafted a sentence that was

procedurally sound and substantively reasonable.

      Accordingly, Somoza’s sentence is AFFIRMED.




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