United States of America v. ALBERTO HERNANDEZ DIAZ, AKA Jesus Garcia, AKA Jesus Garcia-Dias, AKA Alberto…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALBERTO HERNANDEZ DIAZ, AKA
Jesus Garcia, AKA Jesus Garcia-Dias, AKA
Alberto Hernandez, AKA Pedro Lebrano,
AKA Jesus Escalante Rabiela, AKA Arturo
Ramirez, AKA Esiquin Roman, AKA
Martina Roman,
Defendant-Appellant.
No. 17-50300
D.C. No.
2:16-cr-00866-SVW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted March 7, 2019**
Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and SETTLE,*** District Judge.
* 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).
*** The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
FILED
MAR 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Alberto Hernandez Diaz pled guilty to violations of 8 U.S.C. § 1326(a),
(b)(2) for being a previously removed noncitizen found illegally in the United
States. Because the parties are familiar with the facts, we do not recount them
here. Although Hernandez Diaz’s plea agreement included a limited waiver of his
right to appeal his sentence, it does not preclude our review. The waiver’s narrow
language does not expressly encompass the issues raised, see United States v.
Jeronimo, 398 F.3d 1149, 1152-53 (9th Cir. 2005), overruled on other grounds by
United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc), and
ambiguity must be construed in Hernandez Diaz’s favor, see United States v. Cope,
527 F.3d 944, 949-50 (9th Cir. 2008). We therefore have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. Hernandez Diaz argues that the district court abused its discretion in
rejecting the Federal Rule of Criminal Procedure 11(c)(1)(C) agreement, which
stipulated to a 27-month sentence. We review a district court’s rejection of a plea
agreement for abuse of discretion. See In re Morgan, 506 F.3d 705, 708 (9th Cir.
2007).
The district court made a sufficiently individualized determination. The
court waited to review Hernandez Diaz’s complete pre-sentence report (“PSR”)
before deciding whether to accept the agreement. Id. at 711-12. After “read[ing]
the report and the pleadings,” it rejected the agreement on the record, explaining

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that the proposed sentence was too lenient. Based on the PSR’s recommendation
and Hernandez Diaz’s extensive criminal and deportation history, this conclusion
was reasonable. Id. (explaining that “Rule 11 vests district courts with
considerable discretion to assess the wisdom of plea bargains”). We see no abuse
of discretion here.
2. Hernandez Diaz also argues that the district court, after rejecting the Rule
11(c)(1)(C) agreement, violated Rule 11(c)(5)’s procedures by failing to
(1) personally ask him whether he wished to withdraw his guilty plea, see Fed. R.
Crim. P. 11(c)(5)(B), and (2) advise him that the disposition could be less
favorable if he did not withdraw his plea, see Fed. R. Crim. P. 11(c)(5)(C).
Because Hernandez Diaz did not object below, we review for plain error. See
United States v. Vonn, 535 U.S. 55, 61-62, 74 (2002).
Whether the district court violated either prong of Rule 11(c)(5) makes no
difference to the outcome here. Hernandez Diaz fails to show any “reasonable
probability that, but for the error, he would not have entered the plea.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Hernandez Diaz does not
allege that he misunderstood his right to withdraw his plea or that he might have
done so if the court had better advised him. Moreover, after those alleged errors,
he accepted an amended plea agreement, proposing a sentence that was nearly
three times as long as the initial, rejected agreement. Because this “tends to show

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that the [alleged] Rule 11 error made no difference to the outcome here,” id. at 85,
we conclude there was no plain error.
AFFIRMED.

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