                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 04 2014

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



                           FOR THE NINTH CIRCUIT


EDUARDO AMEZCUE,                                 No. 09-55946

              Petitioner - Appellant,            D.C. No. 2:08-cv-03798-PA-JTL

  v.
                                                 MEMORANDUM*
J. TIM OCHOA, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                             Submitted June 2, 2014**
                               Pasadena, California

Before: TROTT and CALLAHAN, Circuit Judges, and BENNETT, 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 Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
      Eduardo Amezcue petitions this court for a writ of habeas corpus, claiming

that (1) his thirteen-year sentence, to which he stipulated in a plea agreement,

violated his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466

(2000) and Cunningham v. California, 549 U.S. 270 (2007), and (2) his counsel

was ineffective by failing to inform Amezcue of his Cunningham rights and failing

to object to the “illegal” thirteen-year sentence. We reject both claims.

      Amezcue had a choice between (a) going to trial on his guilt and sentence

for his original charges of murder and transportation of a controlled substance,

which carried a sentence of twenty-five years to life, or (b) pleading guilty to

voluntary manslaughter and assault with a firearm, both with firearm

enhancements, and accepting a sentence of exactly thirteen years. He chose the

latter. He cannot now better his bargain by claiming that the state trial court judge

erred by imposing the upper term on the voluntary manslaughter firearm

enhancement in order to arrive at the thirteen-year sentence to which he agreed.

Therefore, the state court’s denial of Amezcue’s habeas petition was not contrary

to, or an unreasonable application of, clearly established federal law, see 28 U.S.C.

§ 2254(d); Williams v. Taylor, 529 U.S. 362, 405–07 (2000), and we will not

expand the certificate of appealability to include Amezcue’s newly-raised

ineffective assistance of counsel claim.


                                           2
      Amescue’s entire case rests on the proposition that he can challenge just his

sentence, while leaving the remainder of his plea agreement intact. But Amezcue’s

sentence is his plea, especially considering that the plea agreement substituted a

fixed sentence of thirteen years for a sentence of twenty-five years to life. Thus,

the plea agreement itself forecloses Amezcue’s Cunningham claim. See United

States v. Broce, 488 U.S. 563, 569 (1989) (“[W]hen the judgment of conviction

upon a guilty plea has become final and the offender seeks to reopen the

proceeding, the inquiry is ordinarily confined to whether the underlying plea was

both counseled and voluntary”).

      Moreover, Amezcue never had a Sixth Amendment right regarding his

thirteen-year sentence because that right applies only if findings of fact are

required to elevate a sentence to the upper term. See United States v.

Pacheco-Navarette, 432 F.3d 967, 971 (9th Cir. 2005). Here, they were not. The

cases cited by Amezcue do not support his argument to the contrary . See, e.g.,

People v. French, 178 P.3d 1100, 1108 (Cal. 2008) (a defendant who pleads guilty,

“with a sentence to be imposed within a specified maximum, reasonably expects to

have the opportunity to litigate any matters related to the trial court’s choice of

sentence”) (emphasis added).




                                           3
      Finally, even if Cunningham did apply to Amezcue’s sentence, Amezcue’s

plea and stipulation to the thirteen-year sentence waived Cunningham. See

Blakely v. Washington, 542 U.S. 296, 310 (2004); Tidwell v. Evans, CV

08-0437-TJH (MLG), 2008 WL 4195940, at *6 (C.D. Cal. Sept. 4, 2008)

(explaining that because the defendant agreed to a specific sentence, he “waived

any argument that his sentence was imposed under statutory standards held to be

unconstitutional by the Supreme Court”). Assuming a general waiver of the right

to a jury trial is inadequate, Amezcue’s express consent to the thirteen-year

sentence at the very least vitiated any Cunningham error.

       We have considered, and reject, Amezcue’s remaining arguments.

      PETITION DENIED.




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