United States of America v. Hernan Cortez-Villasenor

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERNAN CORTEZ-VILLASENOR,
Defendant - Appellant.
No. 14-10552
D.C. No. 1:12-cr-00184-AWI
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Hernan Cortez-Villasenor appeals from the district court’s judgment and
challenges the 120-month sentence imposed following his guilty-plea conviction for
conspiracy to manufacture, distribute, and/or possess with the intent to distribute
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and unlawful
FILED
NOV 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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distribution of an unregistered pesticide, in violation of 7 U.S.C. §§ 136j(a)(1)(A)
and 136l(b)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Cortez-Villasenor contends that he received ineffective assistance because his
trial counsel failed to argue that he qualified for safety-valve relief under 18 U.S.C.
§ 3553(f). Contrary to Cortez-Villasenor’s contention, the record does not permit us
to consider this claim on direct appeal. See United States v. Rahman, 642 F.3d
1257, 1259-60 (9th Cir. 2011) (this court reviews ineffective assistance claims on
direct appeal only where the record is sufficiently developed or inadequate
representation is obvious).
Cortez-Villasenor also contends that the district court erred by failing to
explain its denial of safety-valve relief. We disagree. The record reflects that the
district court adopted the presentence report’s finding that Cortez-Villasenor failed
to debrief successfully, which was supported by the government’s uncontested
description at sentencing of the safety-valve interview. This is sufficient to permit
meaningful appellate review. See United States v. Carty, 520 F.3d 984, 992 (9th
Cir. 2008) (en banc).
In light of our decision, we do not reach Cortez-Villasenor’s request for
reassignment to a different judge on remand.
AFFIRMED.
14-10552 2

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