United States of America v. Curtis D. Somoza

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Glen H. Davidson, Senior District Judge for the U.S.**
District Court for the Northern District of Mississippi, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CURTIS D. SOMOZA,
Defendant - Appellant.
No. 09-50588
D.C. No. 2:06-cr-00479-AHM-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted October 13, 2011
Pasadena, California
Before: PREGERSON and BYBEE, Circuit Judges, and DAVIDSON, Senior
District Judge.**
Curtis D. Somoza (“Somoza”) appeals his conviction and 300 month
sentence for conspiracy, mail fraud, wire fraud, and transactional money
FILED
NOV 08 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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laundering—as well as the imposition of criminal forfeiture—arising from his
operating a large Ponzi scheme. We affirm.
The district court did not abuse its discretion in denying Somoza’s motion to
withdraw his guilty plea. See United States v. Showalter, 569 F.3d 1150, 1154 (9th
Cir. 2009). To successfully withdraw a guilty plea before sentencing, a defendant
must “show a fair and just reason” for doing so. Fed. R. Crim. P. 11(d)(2)(B). See
Showalter, 569 F.3d at 1154. The district court properly apprised Somoza of how
and when he could bring an ineffective assistance of counsel claim against his
then-attorney Edward Robinson. Additionally, Somoza was not coerced by any
party into pleading guilty, and he fully understood the nature of his plea. Thus,
Somoza did not present a fair and just reason for withdrawing his plea.
By pleading guilty, Somoza waived his claim that the district court erred in
denying his motion to substitute counsel. An unconditional guilty plea waives “the
right to appeal all non-jurisdictional antecedent rulings and cures all antecedent
constitutional defects.” United States v. Foreman, 329 F.3d 1037, 1038 (9th Cir.
2003) (internal quotation marks omitted), overruled on other grounds by United
States v. Jacobo Castillo, 496 F.3d 947, 949 (9th Cir. 2007) (en banc). Thus, this
court lacks jurisdiction over Somoza’s claim that the district court erred in denying
his motion for substitute counsel.

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The district court imposed a sentence which was procedurally and
substantively reasonable. A court may only set aside a sentence if it is
“procedurally erroneous or substantively unreasonable.” United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008). The district court correctly found that Somoza
did not merit a downward variance in his sentence based on the seriousness of his
offense, that Somoza’s sentence did not produce an unwarranted sentencing
disparity, and that Somoza had defrauded over fifty victims of approximately $44
million dollars. Moreover, the district court did not give improper weight to its
determination that Somoza’s sentence should promote public recognition of the
evils of Ponzi schemes. The district court properly considered the 18 U.S.C. §§
3553(a)(2)(A)-(a)(2)(C) sentencing factors and crafted a sentence that was
procedurally sound and substantively reasonable.
Accordingly, Somoza’s sentence is AFFIRMED.

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