                                                                            FILED
                           NOT FOR PUBLICATION                               DEC 19 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30276

              Plaintiff-Appellee,                D.C. No. 2:13-cr-00049-RSL

 v.
                                                 MEMORANDUM*
APOLINAR CRUZ-CRUZ, a.k.a. Poli,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert S. Lasnik, District Judge, Presiding

                          Submitted December 14, 2016**

Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.

      Apolinar Cruz-Cruz appeals from the district court’s judgment and

challenges the denial of his motion to withdraw his guilty plea. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The government argues that this appeal should be dismissed based on the

appeal waiver contained in the parties’ plea agreement. Because the magistrate

judge only advised Cruz-Cruz of the waiver of his right to appeal his sentence, not

the waiver of his right to appeal his conviction, we conclude that this appeal is not

barred by the appeal waiver. See Fed. R. Crim. P. 11(b)(1)(N); United States v.

Brizan, 709 F.3d 864, 866 (9th Cir. 2013).

      Cruz-Cruz contends that the district court erred in determining that his

allegations of legal advice during plea negotiations did not constitute a “fair and

just reason” for withdrawing his guilty plea. We disagree. Cruz-Cruz was aware

of the allegedly deficient legal advice at the time of his guilty plea. See United

States v. Mayweather, 634 F.3d 498, 506 (9th Cir. 2010) (“We have never held that

[Federal Rule of Criminal Procedure 11(d)(2)(B)] also embraces circumstances

known to a defendant at the time of the guilty plea, and we decline to do so now.”).

Further, Cruz-Cruz failed to demonstrate that different legal advice plausibly

would have motivated a reasonable person in his position not to plead guilty. See

United States v. Bonilla, 637 F.3d 980, 983 (9th Cir. 2011).

      We reject Cruz-Cruz’s argument, raised for the first time on appeal, that the

district court plainly erred in not allowing him to withdraw his guilty plea on the

basis of a Rule 11 error during the plea colloquy. See United States v. Jimenez-


                                           2                                     15-30276
Dominguez, 296 F.3d 863, 866-67 (9th Cir. 2002) (a defendant raising a Rule 11

error for the first time on appeal must demonstrate plain error, including that any

error affected his substantial rights).

      AFFIRMED.




                                          3                                    15-30276
