United States of America v. Jesus Raul-Cruz

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS RAUL-CRUZ,
Defendant - Appellant.
No. 11-30002
D.C. No. 1:09-cr-00248-EJL
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR COPADO,
Defendant - Appellant.
No. 11-30037
D.C. No. 1:09-cr-00248-EJL
Appeals from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
FILED
FEB 24 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
11-30002, 11-30037 2
Submitted February 21, 2012**
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
In these related appeals, Jesus Raul-Cruz and Victor Copado appeal from the
respective 87-month and 100-month sentences imposed following their guilty-plea
convictions for conspiracy to distribute cocaine and marijuana, in violation of 21
U.S.C. §§ 841(a)(1) and 846. We have jurisdiction under 28 U.S.C. § 1291. In
No. 11-30002, we dismiss in light of a valid appeal waiver. In No. 11-30037, we
affirm.
In No. 11-30002, Raul-Cruz’s valid appeal waiver bars this appeal
challenging the district court’s imposition of a sentencing enhancement for
possession of a firearm. See United States v. Joyce, 357 F.3d 921, 922 (9th Cir.
2004). We decline to consider Raul-Cruz’s contention, raised for the first time in
his reply brief, that he is entitled to an exception to the waiver. See United States
v. Rearden, 349 F.3d 608, 614 n.2 (9th Cir. 2003).
In No. 11-30037, Copado contends that the district court erred by imposing a
two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm.
This contention fails because the district court adequately found that the possession

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11-30002, 11-30037 3
of firearms by co-conspirators was reasonably foreseeable to Copado, see United
States v. Benford, 574 F.3d 1228, 1234 (9th Cir. 2009), and this finding was not
clearly erroneous in light of the nature of the conspiracy and the ample evidence of
firearm possession. See United States v. Garcia, 909 F.2d 1346, 1349-50 (9th Cir.
1990).
No. 11-30002: DISMISSED.
No. 11-30037: AFFIRMED.

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