United States of America v. Jesus Estrada

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS ESTRADA,
Defendant - Appellant.
No. 09-15461
D.C. Nos. 2:07-cv-01609-LRH
2:02-CR-00186-LRH
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Jesus Estrada appeals from the district court’s order denying his motion for
relief under 28 U.S.C. § 2255. We have jurisdiction under to 28 U.S.C. § 2253,
and we affirm.
FILED
OCT 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Government contends that Estrada’s waiver of his right to appeal his
sentence in a plea agreement bars this appeal. We disagree, because the plea
agreement “did not expressly waive the right to bring a § 2255 motion.” See
United States v. Pruitt, 32 F.3d 431, 432-33 (9th. Cir 1994); United States v.
Nunez, 223 F.3d 956, 959 (9th Cir. 2000).
Estrada contends that his sentence violates the Due Process Clause because
there was no evidentiary support for the district court’s imposition of a two-level
role enhancement to his base offense level under U.S.S.G. § 3B1.1(c). We affirm
because the record reflects that Estrada exercised authority over, and was
responsible for organizing, a coconspirator. See United States v. Maldonado, 215
F.3d 1046, 1050 (9th Cir. 2000) (“A single incident of persons acting under a
defendant’s direction is sufficient evidence to support a two-level role
enhancement.”).
Estrada also contends that it was impermissible for the district court to
impose the enhancement where the government opposed it, and he objected to the
Presentence Report (“PSR”) on the grounds that he was not a leader under the
Guidelines. Those contentions are unpersuasive. See Maldonado, 215 F.3d at
1051 (citing United States v. Milton, 153 F.3d 891, 897 (8th Cir. 1998) for the
proposition that “where government and defendant both opposed PSR

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recommendation, the court did not err by relying on facts presented in the PSR to
establish a role enhancement under U.S.S.G. § 3B1.1.”); United States v. Riley, 335
F.3d 919, 931 (holding that, absent actual evidence contradicting a PSR, “an
uncontradicted PSR alone is sufficient to uphold a district court’s findings”).
Estrada also contends that the district court relied on unreliable evidence.
The record belies this contention.
AFFIRMED.

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