United States of America v. Eleazar Herrera-Sanchez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELEAZAR HERRERA-SANCHEZ,
Defendant-Appellant.
No. 18-30011
D.C. No. 1:16-cr-00081-BLW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Eleazar Herrera-Sanchez appeals the district court’s judgment and
challenges the 200-month sentence imposed following his guilty-plea conviction
for distributing methamphetamine and aiding and abetting, in violation of 21
U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* 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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As an initial matter, we decline to enforce the appeal waiver in the plea
agreement and instead proceed to the merits of the appeal. See United States v.
Jacobo-Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc) (appeal waiver is not
jurisdictional).
Herrera-Sanchez first contends that the district court erred by applying the
two-level dangerous weapon enhancement under U.S.S.G. § 2D1.1(b)(1). The
court did not abuse its discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167,
1170 (9th Cir. 2017) (en banc). Contrary to his contention, the record shows no
clear error in the court’s finding that Herrera-Sanchez constructively possessed the
assault rifle in question during the instant offense. See United States v. Boykin,
785 F.3d 1352, 1364 (9th Cir. 2015) (constructive possession shown by “a
sufficient connection between the defendant and the contraband to support the
inference that the defendant exercised dominion and control over the
[contraband].” (internal quotations omitted)). The cooperating witness testified
that, in exchange for methamphetamine, he sold Herrera-Sanchez the assault rifle
found in the residence where Herrera-Sanchez distributed methamphetamine. The
district court relied on this testimony regarding Herrera-Sanchez’s knowledge and
control of the rifle, as well as the undisputed evidence that the assault rifle was in
the residence where drugs were sold, in applying the enhancement. See Boykin,
785 F.3d at 1364 (application of enhancement not error where firearm with

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defendant’s fingerprints found in residence at which defendant had transacted
several drug sales).
Herrera-Sanchez also contends that the district court procedurally erred by
relying on clearly erroneous facts to impose a sentence at the higher end of the
Guidelines range. The district court’s findings that Herrera-Sanchez was
responsible for distributing a larger quantity of drugs and making threats of
violence against the cooperating witness were not clearly erroneous. See United
States v. Christensen, 828 F.3d 763, 816 (9th Cir. 2015) (stating standard). The
district court determined that the Guidelines range may have understated the
seriousness of Herrera-Sanchez’s conduct because the record indicated that (1) the
quantity of drugs involved in the overall conspiracy exceeded the amount used to
calculate the Guidelines range, and (2) he made threats of violence against a
cooperating witness. Evidence in the record, including witness testimony that the
district court found to be credible, supported these findings.
AFFIRMED.

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