United States of America v. Apolinar Cruz-Cruz, a.k.a. Poli

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
APOLINAR CRUZ-CRUZ, a.k.a. Poli,
Defendant-Appellant.
No. 15-30276
D.C. No. 2:13-cr-00049-RSL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Apolinar Cruz-Cruz appeals from the district court’s judgment and
challenges the denial of his motion to withdraw his guilty plea. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
FILED
DEC 19 2016
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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The government argues that this appeal should be dismissed based on the
appeal waiver contained in the parties’ plea agreement. Because the magistrate
judge only advised Cruz-Cruz of the waiver of his right to appeal his sentence, not
the waiver of his right to appeal his conviction, we conclude that this appeal is not
barred by the appeal waiver. See Fed. R. Crim. P. 11(b)(1)(N); United States v.
Brizan, 709 F.3d 864, 866 (9th Cir. 2013).
Cruz-Cruz contends that the district court erred in determining that his
allegations of legal advice during plea negotiations did not constitute a “fair and
just reason” for withdrawing his guilty plea. We disagree. Cruz-Cruz was aware
of the allegedly deficient legal advice at the time of his guilty plea. See United
States v. Mayweather, 634 F.3d 498, 506 (9th Cir. 2010) (“We have never held that
[Federal Rule of Criminal Procedure 11(d)(2)(B)] also embraces circumstances
known to a defendant at the time of the guilty plea, and we decline to do so now.”).
Further, Cruz-Cruz failed to demonstrate that different legal advice plausibly
would have motivated a reasonable person in his position not to plead guilty. See
United States v. Bonilla, 637 F.3d 980, 983 (9th Cir. 2011).
We reject Cruz-Cruz’s argument, raised for the first time on appeal, that the
district court plainly erred in not allowing him to withdraw his guilty plea on the
basis of a Rule 11 error during the plea colloquy. See United States v. Jimenez-
15-30276 2

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Dominguez, 296 F.3d 863, 866-67 (9th Cir. 2002) (a defendant raising a Rule 11
error for the first time on appeal must demonstrate plain error, including that any
error affected his substantial rights).
AFFIRMED.
15-30276 3

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