United States of America v. Efren Ochoa-Gembe

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EFREN OCHOA-GEMBE,
Defendant - Appellant.
No. 11-50407
D.C. No. 3:09-cr-02916-JLS-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted September 10, 2012**
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Efren Ochoa-Gembe appeals the 235-month sentence imposed following his
guilty plea to conspiracy to import methamphetamine and cocaine in violation of
FILED
SEP 14 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-50407 2
21 U.S.C. §§ 952, 960, and 963. We have jurisdiction under 28 U.S.C. § 1291, and
we dismiss.
Ochoa-Gembe contends that the district court erred by not adequately
addressing the disparity between his sentence and those of similarly-situated
individuals, and by not sufficiently reducing his sentence for the cooperation he
provided. In his written plea agreement, Ochoa-Gembe waived his right to appeal
his conviction and sentence unless the district court imposed a sentence higher than
the high end of the resulting advisory Guidelines range. The district court
sentenced Ochoa-Gembe to the low end of the advisory Guideline range, and as
Ochoa-Gembe acknowledged in his opening brief, his “sentence was within the
range requiring defendant to waive his appeal.” We conclude that Ochoa-Gembe
knowingly and voluntarily agreed to the appellate waiver, and we enforce the
appellate waiver. See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir.
2011).
DISMISSED.

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