United States of America v. Rosa Isela Hernandez-Castro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROSA ISELA HERNANDEZ-CASTRO,
Defendant-Appellant.
No. 14-10497
D.C. No.
4:13-cr-01577-
CKJ-JR-1
OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
November 20, 2015—San Francisco, California
Filed February 25, 2016
Before: Michael J. Melloy,* Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Melloy
* The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.

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UNITED STATES V. HERNANDEZ-CASTRO 2
SUMMARY**
Criminal Law
The panel dismissed an appeal from a sentence in a case
in which the defendant argues that the government breached
her plea agreement, thereby invalidating her appeal waiver.
Reviewing for plain error, the panel held that the
government did not breach the plea agreement by not
objecting when the district court granted only a two-level
departure for fast track instead of the four-level departure set
forth in the plea agreement. The panel distinguished United
States v. Camarillo-Tello, 236 F.3d 1024 (9th Cir. 2001),
because the plea agreement in this case does not indicate that
the government “will recommend” the four-level departure,
and the government did not alter its recommendation at
sentencing. Because the government did not breach the plea
agreement, the panel enforced the appellate waiver.
COUNSEL
Brenda Dabdoub, Tucson, Arizona, for Defendant-Appellant.
Christina M. Cabanillas (argued), Assistant United States
Attorney; John S. Leonardo, United States Attorney; Robert
L. Miskell Appellate Chief, Tucson, Arizona, for Plaintiff-
Appellee.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. HERNANDEZ-CASTRO 3
OPINION
MELLOY, Circuit Judge:
Rosa Hernandez-Castro appeals her sentence of 46
months after pleading guilty to Conspiracy to Possess with
Intent to Distribute Heroin. Hernandez-Castro argues the
district court erred by imposing a two-level downward
departure under U.S.S.G. § 5K3.1 (fast track), instead of the
four-level departure set forth in her Federal Rule of Criminal
Procedure 11(c)(1)(C) plea agreement. Hernandez-Castro
further argues the government breached her plea agreement,
thereby invalidating her appeal waiver. We reject
Hernandez-Castro’s arguments, holding the government did
not breach her plea agreement. We therefore enforce her
appeal waiver and dismiss her appeal.
I.
In Hernandez-Castro’s plea agreement, the parties
“stipulate and agree” to a four-level downward departure
based on fast track, U.S.S.G. § 5K3.1, and a two-level
enhancement for use of a minor to avoid detection, U.S.S.G.
§ 3B1.4. The parties also “stipulate and agree” to a
sentencing range of “57 to 71 months imprisonment if
defendant’s Criminal History Category is I.” At sentencing,
the district court calculated 57 to 71 months as the Guidelines
sentencing range but did not apply the two-level enhancement
for use of a minor to avoid detection, which was rejected in
the PSR. The district court also departed only two levels for
fast track based on the “government’s motion,” although the
government had not actually moved for such a departure.
Neither party objected to the court’s finding.

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UNITED STATES V. HERNANDEZ-CASTRO 4
The district court then granted Hernandez-Castro an
additional “two-level downward variance” based on an
anticipated amendment to the Drug Quantity Table, resulting
in an offense level of 23 and a sentencing range of 46 to 57
months. Before the court pronounced a sentence, the
government stated that “a sentence at the low end of the
range” of 46 to 57 months would be sufficient. The court
sentenced Hernandez-Castro to 46 months.
Hernandez-Castro filed a Rule 35 motion, which the
district court denied. On appeal, Hernandez-Castro concedes
her Rule 35 motion was based on the mistaken belief that the
court incorrectly applied the two-level enhancement for use
of a minor to avoid detection.
II.
Hernandez-Castro waived her right to appeal her sentence
as part of her negotiated plea agreement if her sentence “is
consistent with” the plea agreement. The plea agreement
provides that “[t]he sentence is in accordance with this
agreement if the sentence imposed is within the stipulated
range or below the stipulated range if the Court grants a
variance.” The district court sentenced Hernandez-Castro to
46 months, which was “below the stipulated range” after the
court “grant[ed] a variance.” Thus, unless an exception to the
appellate waiver applies, Hernandez-Castro waived her right
to appeal. See United States v. Bolinger, 940 F.2d 478, 480
(9th Cir. 1991) (rejecting the defendant’s attempt to
circumvent his appeal waiver because the defendant’s
sentence did not exceed the plea agreement’s 36-month cap);
see also United States v. Medina-Carrasco, 806 F.3d 1205,
1209–10 (9th Cir. 2015) (finding that the phrase “in
accordance with” the plea agreement “requires only that the

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UNITED STATES V. HERNANDEZ-CASTRO 5
ultimate sentence fall within the broad range authorized by
the plea agreement” and rejecting the defendant’s alternative
interpretation that “the phrase also could be read to require
that any sentence imposed rest on a correct guidelines
calculation”).
A defendant is released from his or her appeal waiver if
the government breaches the plea agreement. See United
States v. Gonzalez, 16 F.3d 985, 989–90 (9th Cir. 1993).
Hernandez-Castro argues that the government breached her
plea agreement by not objecting when the district court
granted only a two-level departure for fast track (rather than
the four-level departure in the agreement). We review for
plain error because Hernandez-Castro did not raise this
argument at sentencing. See Puckett v. United States,
556 U.S. 129, 135 (2009). We conclude no plain error
occurred.
Hernandez-Castro cites United States v. Camarillo-Tello,
236 F.3d 1024 (9th Cir. 2001), in support of her contention.
In Camarillo-Tello, an illegal re-entry case, the defendant’s
plea agreement provided that “[t]he government will
recommend” a four-level downward adjustment to his offense
level if the defendant stipulated to removal, waived any
appeal, and participated in the fast track program. Id. at 1025
(emphasis added). On appeal, under de novo review, this
Court held the government breached the defendant’s plea
agreement: (1) by failing to include in its sentencing
memorandum all the reasons in the defendant’s plea
agreement for the recommended four-level departure for fast
track; and (2) by failing at sentencing to orally recommend
the four-level departure and instead altering its
recommendation by endorsing a two-level departure. Id. at
1027.

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UNITED STATES V. HERNANDEZ-CASTRO 6
Camarillo-Tello is distinguishable because today we
review for plain error. Unlike the plea agreement in
Camarillo-Tello, Hernandez-Castro’s plea agreement does
not indicate the government “will recommend” the four-level
departure for fast track. Rather, paragraph eight of her plea
agreement provides “the parties stipulate and agree that the
following guideline calculations are appropriate for the
charge for which the defendant is pleading guilty.” That
language is sufficiently distinct from the language obligating
government action in Camarillo-Tello for us to conclude no
plain error occurred here. In addition, the government here
did not alter its recommendation at sentencing. Consistent
with Hernandez-Castro’s plea agreement, the government
recommended “a sentence at the low end of the range” of 46
to 57 months. If anything, the government altered its
recommendation in Hernandez-Castro’s favor by
recommending a sentence at the low end of a range lower
than that provided for in the plea agreement, indicating its
preference for a more lenient, not a “harsher,” sentence. Cf.
Camarillo-Tello, 236 F.3d at 1027 (noting that a prosecutor’s
promise in a plea agreement “is not fulfilled if, while making
the recommendation, the prosecutor contradicts that
recommendation with statements indicating a preference for
a harsher sentence”).
III.
Because we hold the government did not breach
Hernandez-Castro’s plea agreement, we enforce her appellate
waiver and dismiss her appeal.
DISMISSED.

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