                                                                              FILED
                           NOT FOR PUBLICATION                                APR 16 2010

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 07-10332

              Plaintiff - Appellee,              D.C. No. CR-05-00314-1-FJM

  v.
                                                 MEMORANDUM*
JOSE ALVARO AGUILERA-
MENDOZA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Frederick J. Martone, District Judge, Presiding

                            Submitted April 14, 2010**
                             San Francisco, California

Before: KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and MARTINEZ,
District Judge.***




        *
             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 Ricardo S. Martinez, United States District Judge for
the Western District of Washington, sitting by designation.
        Contrary to Aguilera’s assertions, the district court informed him that

pleading guilty would constitute a waiver of his right to have the government prove

to a jury the elements of the crime and the amount of the drugs charged in the

indictment beyond a reasonable doubt. See United States v. Thomas, 355 F.3d

1191, 1197 (9th Cir. 2004). Further, Aguilera admitted personally supplying the

charged amount of drugs. See United States v. Lococo, 514 F.3d 860, 865 (9th Cir.

2008) (per curiam). Nothing in the record supports his contention that his plea was

“coerced” by the court or the government.

      The district court properly overruled Aguilera’s objection to the pre-sentence

report’s recommended leadership role adjustment, and to the extent Aguilera

objected to its calculation of drug quantity, the district court ruled on that issue as

well when it reaffirmed its conclusion that 38 was the correct base offense level.

Aguilera did not raise any specific factual disputes regarding either issue that

required resolution by the district judge. See United States v. Stoterau, 524 F.3d

988, 1011 (9th Cir. 2008).

      Finally, contrary to Aguilera’s assertion, the district court gave him

sufficient opportunity to allocute. See United States v. Marks, 530 F.3d 799, 813

(9th Cir. 2008). Aguilera points to no authority that says the opportunity to

allocute must come at some early stage in the sentencing proceedings. A judge


                                           2
only has to let defendants speak “[b]efore imposing [a] sentence.” Fed. R. Crim. P.

32(i)(4)(A).

      Aguilera’s conviction and sentence are AFFIRMED.




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