United States of America v. ALBERTO PEREZ, AKA Rhino

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALBERTO PEREZ, AKA Rhino,
Defendant-Appellant.
No. 22-50178
D.C. No.
2:21-cr-00112-FLA-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Fernando L. Aenlle-Rocha, District Judge, Presiding
Submitted December 11, 2023**
Pasadena, California
Before: GRABER, CHRISTEN, and OWENS, Circuit Judges.
Defendant Alberto Perez appeals the sentence imposed by the district court
after he pleaded guilty to possessing methamphetamine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). We dismiss the appeal in part
and affirm in part.
* 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 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. Defendant expressly waived the right to appeal most of the issues raised
here because the court imposed a prison term “within or below the range
corresponding to an offense level of 37 and the criminal history category
calculated by the Court, or 120 months, whichever is higher[.]” (Emphases
added). The court found a criminal history of II and sentenced Defendant to 210
months, which is “within . . . the range corresponding to an offense level of 37”
using that criminal history score.
We review de novo whether a defendant waived the right to appeal. United
States v. Dailey, 941 F.3d 1183, 1188 (9th Cir. 2019). Defendant’s waiver was
made knowingly and voluntarily. See United States v. Medina-Carrasco, 815 F.3d
457, 461 (9th Cir. 2016) (stating the standard for enforcing a waiver). Defendant
argues that the waiver was not made knowingly and voluntarily because he was
sentenced to more than 120 months and a reasonable person in his position would
not have known that he was waiving the appeal of a sentence greater than 120
months. But the clear wording of the waiver in the plea agreement is to the
contrary. The fact that the Guideline range corresponding to offense level 37 is not
spelled out in the plea agreement does not render the waiver uncertain or otherwise
invalid. Nor does the waiver suggest that the Guideline range of a sentence for
offense level 37 could be less than 120 months; the waiver specifies that the court
could sentence Defendant “within or below” that range. (Emphasis added). Had

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the court chosen to sentence “below” the range, in theory the resulting sentence
could have been less than 120 months. Accordingly, Defendant’s waiver is valid,
so his arguments that his sentence is unreasonable and that the district court abused
its discretion in denying a mitigating role reduction are waived.
2. Defendant argues that the district court’s application of U.S. Sentencing
Guidelines § 2D1.1(c)(1) violated his right to due process. See United States v.
Pollard, 850 F.3d 1038, 1041 (9th Cir. 2017) (noting that a valid appellate waiver
does not prevent courts from reviewing a sentence that violates the Constitution).
Defendant’s argument is, in essence, a policy argument, not a constitutional one.
For example, he asserts that the Guideline is “draconian,” that it lacks “any
empirical basis,” and that it is “much maligned.” Accordingly, and also because
Defendant expressly agreed to the application of this Guideline, Defendant’s due
process argument fails.
3. Finally, Defendant argues that his trial counsel was ineffective for failing
to argue that the sentencing court should not have followed U.S.S.G. § 2D1.1(c)(1)
and for failing to call to the court’s attention that other judges have declined to
apply this Guideline. We follow our usual rule and decline to review this claim on
direct appeal. See United States v. Singh, 979 F.3d 697, 731 (9th Cir. 2020)
(“[T]he decision of whether to review [an ineffective assistance of counsel] claim
‘is best left to the discretion of the district court.’” (citation omitted)).

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DISMISSED IN PART and AFFIRMED IN PART.

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