                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 27 2011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. 10-10013

              Plaintiff - Appellee,               D.C. No. 2:08-cr-01167-JAT-1

  v.
                                                  MEMORANDUM *
SERGIO RAYA-BAEZ, AKA Sergio
Raya,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                      Argued and Submitted January 10, 2011
                            San Francisco, California

Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.

       Sergio Raya-Baez appeals the 60-month sentenced imposed by the district

court following his jury conviction for illegal reentry after deportation in violation

of 8 U.S.C. § 1326. He claims the district court plainly erred by concluding that

his 1991 Arizona conviction for kidnaping qualified as a “crime of violence” under


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.S.G. § 2L1.2(b)(1)(A)(ii) and thus warranted a 16-level increase to the

Sentencing Guidelines’ base offense level. The Government argues that Mr. Raya-

Baez waived his right to challenge this sentence enhancement by expressly

agreeing in the district court that his prior conviction qualified as a “crime of

violence.” Jurisdiction is proper pursuant to 28 U.S.C. § 1291 and we conclude

that Mr. Raya-Baez waived this challenge. We affirm.

      This court reviews issues of waiver de novo. United States v. Pacheco-

Navarette, 432 F.3d 967, 970 (9th Cir. 2005). Waiver is the “intentional

relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst,

304 U.S. 458, 464 (1938). A defendant waives the right to appeal if the defendant

“considered objecting . . . but ‘for some tactical or other reason rejected the idea.’”

United States v. Jimenez, 258 F.3d 1120, 1124 (9th Cir. 2001) (quoting United

States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc)). In contrast, where a

defendant fails to object because he “is unaware of a right that is being violated,”

the error is merely forfeited. Perez, 116 F.3d at 846. Forfeited rights are

reviewable for plain error, while waived rights are not reviewable. See United

States v. Olano, 507 U.S. 725, 733-34 (1993).

      Here, the record demonstrates that Mr. Raya-Baez “considered objecting” to

the sentencing enhancement but “rejected the idea.” Prior to his sentencing, Mr.


                                           2
Raya-Baez requested a continuance specifically to allow his counsel to undertake a

“substantial investigation into the defendant’s prior convictions in an effort to

make the necessary legal objections to their use as sentence enhancements.” The

motion explained, “Defendant Raya-Baez is adamant that the use of his prior

convictions as sentence enhancements is improper and has instructed counsel to

strenuously investigate and research all possible objections to their use for this

purpose.” This motion to continue demonstrates that Mr. Raya-Baez recognized a

potential problem with the characterization of kidnaping as a “crime of violence”

and that he knew he could object to the sentence enhancement. Instead, Mr. Raya-

Baez decided to take a different approach by arguing for a downward departure.

Cf. United States v. Si, 343 F.3d 1116, 1128 n.3 (9th Cir. 2003) (holding that the

defendant waived a sentencing entrapment argument where he acknowledged the

argument in a pre-sentencing letter to the U.S. Probation Office, but subsequently

did not object on those grounds before the district court).

      Because Mr. Raya-Baez waived his challenge to the “crime of violence”

sentence enhancement, this claim is not reviewable. Olano, 507 U.S. at 733-34.

      AFFIRMED.




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