United States of America v. Roberto Gonzalez-Loera

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERTO GONZALEZ-LOERA,
Defendant-Appellant.
No. 15-10481
D.C. No. 2:13-cr-01123-SPL-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted February 16, 2017
San Francisco, California
Before: TASHIMA and HURWITZ, Circuit Judges, and ADELMAN,**
District Judge.
Roberto Gonzalez-Loera (“Gonzalez”) appeals his conviction and sentence
for conspiracy to possess with intent to distribute five kilograms or more of
cocaine and fifty grams or more of methamphetamine in violation of 21 U.S.C.
FILED
MAR 01 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.

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§§ 841(a)(1), (b)(1)(A)(ii), and (b)(1)(A)(viii). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. Gonzalez argues that the district court violated Fed. R. Crim. P. 11 by
modifying his plea agreement, but has not shown plain error because he has not
shown that any alleged error affected substantial rights. See United States v. Kyle,
734 F.3d 956, 963, 966 (9th Cir. 2013). Count 1 of the superseding indictment is
identical to count 1 of the original indictment with the addition of four additional
co-conspirators. Gonzalez argues that this addition had the potential to increase his
sentence by expanding the scope of the conspiracy and, thus, the amount of drugs
involved. However, a review of the record shows that the addition of four
additional co-conspirators did not in fact affect the Guidelines range or Gonzalez’s
ultimate sentence. Nor does the evidence suggest that Gonzalez would not have
pled guilty to count 1 of the superseding indictment; on the contrary, his initials by
every insertion of the word “superseding” in the plea agreement indicate that he
intended to plead to that count.
2. Gonzalez also raised a double jeopardy challenge. But this challenge
is waived under the valid and binding appellate waiver in Gonzalez’s plea
agreement. See United States v. Hernandez-Guardado, 228 F.3d 1017, 1028 (9th
Cir. 2000).
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3. Gonzalez argues that the court intruded upon the prosecutor’s
charging decision by requiring him to plead to count 1 of the superseding
indictment. But, the government intended him to plead to this count. The
references in the plea agreement to the original indictment were simply and
unintended oversight. Therefore, the court did not force the prosecution to bring “a
charge it did not want to bring.” In re Ellis, 356 F.3d 1198, 1209 (9th Cir. 2004)
(en banc).
For the foregoing reasons, the judgment of conviction is AFFIRMED.
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