United States of America v. Noe Hernandez-Vega, a.k.a. Noe Hernandez Vega, a.k.a. Noe Vega Hernandez, a.k.a. Noe…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NOE HERNANDEZ-VEGA, a.k.a. Noe
Hernandez Vega, a.k.a. Noe Vega
Hernandez, a.k.a. Noe Vega-Hernandez,
Defendant-Appellant.
No. 17-50438
D.C. No. 5:16-cr-00105-JGB-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Noe Hernandez-Vega appeals from the district court’s judgment and
challenges the 132-month sentence imposed following his guilty-plea conviction
for possession with intent to distribute methamphetamine and aiding and abetting,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2(a). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm in part and vacate and remand
in part.
The government argues that Hernandez-Vega waived the right to appeal his
sentence. We conclude that the waiver is unenforceable because the district court
unambiguously advised Hernandez-Vega that he had the right to appeal. See
United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995).
Hernandez-Vega contends that the district court procedurally erred by failing
to respond to his argument that a lesser sentence was necessary to avoid an
unwarranted disparity with the sentences his co-defendants received. We review
for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 & n.3
(9th Cir. 2010), and conclude that there is none. The record reflects the district
court considered Hernandez-Vega’s disparity argument and was not persuaded that
it warranted a lower sentence. See United States v. Perez-Perez, 512 F.3d 514,
516-17 (9th Cir. 2008).
Hernandez-Vega also argues that this court should remand to the district
court to modify standard conditions five, six, and fourteen, which were held to be
unconstitutionally vague after the district court sentenced Hernandez-Vega. See
United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018), cert. denied, 139
S. Ct. 133 (2018). We remand for the district court to modify these conditions

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consistent with our opinion in Evans.
AFFIRMED in part; VACATED and REMANDED in part with
instructions.

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