                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 16 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10327

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00317-PGR-1

  v.
                                                 MEMORANDUM*
DIEGO AVILA SANCHEZ, AKA Diegoa
Avila-Sanchez, AKA Diego Sanchez-
Avila,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                Paul G. Rosenblatt, Senior District Judge, Presiding

                              Submitted July 9, 2014**
                              San Francisco, California

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Diego Avila challenges his conviction and sentence for illegal reentry into

the United States under 8 U.S.C. § 1326. We assume the parties are familiar with


        *
             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).
the facts of this case, so we do not recount them here. We have jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

      1. The government concedes that the waiver of Avila’s appeal rights

contained in the rejected plea agreement is unenforceable, and we agree. See In re

Morgan, 506 F.3d 705, 713 (9th Cir. 2007).

      2. The district court rejected Avila’s plea agreement because it believed the

sentence was too lenient given Avila’s criminal history, the character of the crime,

and the need for deterrence. The district court did not reject the agreement in order

to independently punish Avila’s violation of the terms of supervised release, or

because it was “trying to force the government to pursue a charge it [did] not wish

to press.” In re Vasquez-Ramirez, 443 F.3d 692, 698 (9th Cir. 2006). The district

court’s rejection of the agreement did not improperly invade the Executive

Branch’s charging authority. See id.

      3. Avila’s guilty plea was voluntary, and he had an adequate opportunity to

withdraw his plea under Federal Rule of Criminal Procedure 11(c)(5)(B). The

district court confirmed that the plea was freely and voluntarily given. After the

district court rejected the plea agreement, the court did not threaten to give Avila a

harsher sentence in the event Avila decided to withdraw his guilty plea and ended

up being sentenced after a trial. After being given an opportunity to withdraw his


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guilty plea, Avila opted to proceed. “The amount of time [defendant] had to

consider the plea is only relevant if it somehow rendered his plea coerced, and

therefore involuntary.” Doe v. Woodford, 508 F.3d 563, 570 (9th Cir. 2007).

There is no indication that Avila needed more time to understand that, if he

decided to proceed with sentencing, he would likely receive a higher sentence than

the one contemplated under the plea agreement. Avila could have requested more

time to speak with his attorney if he did not understand the consequences of going

forward after the plea agreement was rejected, but he did not do so. Nor did he ask

that the case be set for trial. Under these circumstances, it is apparent that Avila’s

decision to maintain his guilty plea and continue with sentencing was voluntary.

      4. Avila did not properly object to the district court’s delivery of the

advisements required by Federal Rule of Criminal Procedure 11(c)(5) upon

rejection of a plea agreement, so we review this issue for plain error. The district

court stated in open court that it could not accept Avila’s plea agreement and that it

was rejecting the agreement. The district court also indicated that Avila would

likely receive a harsher sentence than that contemplated by the agreement if he

proceeded with sentencing. The district court stated in open court that it was

inclined to sentence Avila to a maximum of twenty-one months imprisonment, and

Avila did in fact receive this sentence. Avila cites no controlling authority that


                                           3
clearly indicates the district court’s advisements were erroneous. What is more, he

has not shown that his substantial rights have been affected, that is, “a reasonable

probability that, but for the error[s], he would not have entered the plea.” See

United States v. Roblero-Solis, 588 F.3d 692, 700 (9th Cir. 2009) (internal

quotation marks omitted). There was no plain error in the district court’s delivery

of the advisements.

      5. Because we are not remanding this case for further proceedings, there is

no need to consider whether the case should be reassigned to a different district

court judge.

      Avila’s request for judicial notice is GRANTED. The district court’s

judgment is AFFIRMED.




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