United States of America v. Jose Alvaro Aguilera- Mendoza

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Ricardo S. Martinez, United States District Judge for
the Western District of Washington, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE ALVARO AGUILERA-
MENDOZA,
Defendant - Appellant.
No. 07-10332
D.C. No. CR-05-00314-1-FJM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted April 14, 2010 **
San Francisco, California
Before: KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and MARTINEZ,
District Judge. ***
FILED
APR 16 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Contrary to Aguilera’s assertions, the district court informed him that
pleading guilty would constitute a waiver of his right to have the government prove
to a jury the elements of the crime and the amount of the drugs charged in the
indictment beyond a reasonable doubt. See United States v. Thomas, 355 F.3d
1191, 1197 (9th Cir. 2004). Further, Aguilera admitted personally supplying the
charged amount of drugs. See United States v. Lococo, 514 F.3d 860, 865 (9th Cir.
2008) (per curiam). Nothing in the record supports his contention that his plea was
“coerced” by the court or the government.
The district court properly overruled Aguilera’s objection to the pre-sentence
report’s recommended leadership role adjustment, and to the extent Aguilera
objected to its calculation of drug quantity, the district court ruled on that issue as
well when it reaffirmed its conclusion that 38 was the correct base offense level.
Aguilera did not raise any specific factual disputes regarding either issue that
required resolution by the district judge. See United States v. Stoterau, 524 F.3d
988, 1011 (9th Cir. 2008).
Finally, contrary to Aguilera’s assertion, the district court gave him
sufficient opportunity to allocute. See United States v. Marks, 530 F.3d 799, 813
(9th Cir. 2008). Aguilera points to no authority that says the opportunity to
allocute must come at some early stage in the sentencing proceedings. A judge

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only has to let defendants speak “[b]efore imposing [a] sentence.” Fed. R. Crim. P.
32(i)(4)(A).
Aguilera’s conviction and sentence are AFFIRMED.

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