                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 23 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50132

              Plaintiff - Appellee,              D.C. No. 8:11-cr-00012-DOC-1

 v.
                                                 MEMORANDUM*
VICTOR MARIN VICTORIO,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                           Submitted October 21, 2015**
                               Pasadena, California

Before: IKUTA and OWENS, Circuit Judges, and SESSIONS,*** District Judge.

      Appellant Victor Victorio was convicted of conspiracy to distribute

methamphetamine, in violation of 21 U.S.C. § 846, following a jury trial before the

        *
             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 Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
district court. He appeals his sentence of 292 months of incarceration followed by

ten years of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      Victorio’s only claim is that the district court erred by relying upon a

stipulation regarding drug quantity and type at sentencing. Victorio acknowledges

that his counsel agreed to the stipulation, and that neither he nor his counsel

objected to the stipulation at any point before the district court. But he argues that

the district court should have inquired as to whether he personally understood and

assented to the stipulation because he did not sign it or otherwise affirmatively

demonstrate assent.

      His argument is foreclosed by United States v. Ferreboeuf, 632 F.2d 832

(9th Cir. 1980). In Ferreboeuf, this court held that “when a stipulation to a crucial

fact is entered into the record in open court in the presence of the defendant, and is

agreed to by defendant’s acknowledged counsel, the trial court may reasonably

assume that the defendant is aware of the content of the stipulation and agrees to it

through his or her attorney. Unless a criminal defendant indicates objection at the

time the stipulation is made, he or she is ordinarily bound by such stipulation.” Id.

at 836. In this case, Victorio does not dispute that the stipulation was (1) entered

into the record in open court, (2) in his presence, and (3) agreed to by his counsel.


                                           2
And he makes no claim that he objected to the stipulation at any point before the

district court. Ferreboeuf is thus directly on point, and Victorio’s claim fails.

      Victorio’s attempts to get around Ferreboeuf are unpersuasive. Contrary to

his suggestion, Ferreboeuf was not abrograted by Apprendi v. New Jersey, 530

U.S. 466 (2000). See United States v. Hernandez-Hernandez, 431 F.3d 1212, 1219

(9th Cir. 2005) (citing Ferreboeuf with approval post-Apprendi). Apprendi

broadened the class of disputed facts that must be decided by a jury; it does not

apply when a defendant waives the right to have a particular fact determined by the

jury via stipulation. See United States v. Shimoda, 334 F.3d 846, 849-50 (9th Cir.

2003); see also United States v. Silva, 247 F.3d 1051, 1060 (9th Cir. 2001). And

Victorio’s frequent objections before, during, and after trial do not distinguish the

facts of this case from Ferreboeuf. To the contrary, Victorio’s general

disinclination to agree with the government made it all the more reasonable for the

district court to interpret his silence as agreement with the contents of the drug

stipulation.

      Even assuming Victorio could distinguish Ferreboeuf, he cannot show that

any error in this case was “plain.” Among other things, an error must be “clear or

obvious” in order to be plain. United States v. Castillo-Marin, 684 F.3d 914, 918

(9th Cir. 2012). Victorio has not cited a single case, and we have not found one,


                                           3
that stands for the proposition that a stipulation as to a crucial fact is invalid if not

personally signed or agreed to by a criminal defendant. Therefore, any error in this

case was not plain.

       AFFIRMED.




                                             4
