United States of America v. Carlos Diego Cruz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS DIEGO CRUZ,
Defendant - Appellant.
No. 13-10019
D.C. No. 4:12-cr-01621-DCB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Carlos Diego Cruz appeals from the district court’s judgment and challenges
the 30-month sentence imposed following his guilty-plea conviction for conspiracy
to possess with intent to distribute marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), and 846. We dismiss.
FILED
FEB 27 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Cruz contends that the district court violated Federal Rule of Criminal
Procedure 32 by failing to consider a departure under U.S.S.G. § 5K3.1. He also
contends that his trial counsel was ineffective. The government argues that this
appeal is barred by an appeal waiver. We review de novo whether a defendant has
waived his right to appeal. See United States v. Harris, 628 F.3d 1203, 1205 (9th
Cir. 2011). The record reflects that Cruz knowingly and voluntarily entered into an
appeal waiver, which barred any right to challenge his conviction and sentence.
Accordingly, we dismiss this appeal in light of the valid appeal waiver. See id.; see
also United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000) (“[O]ne waives the
right to argue ineffective assistance of counsel at sentencing on direct appeal when
one waives the right to appeal the sentence.”).
To the extent Cruz is alleging ineffective assistance in connection with
counsel’s negotiation of the plea, we decline to consider that claim on direct appeal
because the record is insufficiently developed to evaluate Cruz’s claim, and trial
counsel’s legal representation was not so inadequate that it can be concluded at this
point that Cruz obviously was denied his Sixth Amendment right to counsel. See
United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).
DISMISSED.
13-10019 2

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