FILED
NOT FOR PUBLICATION JAN 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10013
Plaintiff - Appellee, D.C. No. 2:08-cr-01167-JAT-1
v.
MEMORANDUM *
SERGIO RAYA-BAEZ, AKA Sergio
Raya,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted January 10, 2011
San Francisco, California
Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.
Sergio Raya-Baez appeals the 60-month sentenced imposed by the district
court following his jury conviction for illegal reentry after deportation in violation
of 8 U.S.C. § 1326. He claims the district court plainly erred by concluding that
his 1991 Arizona conviction for kidnaping qualified as a “crime of violence” under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.S.G. § 2L1.2(b)(1)(A)(ii) and thus warranted a 16-level increase to the
Sentencing Guidelines’ base offense level. The Government argues that Mr. Raya-
Baez waived his right to challenge this sentence enhancement by expressly
agreeing in the district court that his prior conviction qualified as a “crime of
violence.” Jurisdiction is proper pursuant to 28 U.S.C. § 1291 and we conclude
that Mr. Raya-Baez waived this challenge. We affirm.
This court reviews issues of waiver de novo. United States v. Pacheco-
Navarette, 432 F.3d 967, 970 (9th Cir. 2005). Waiver is the “intentional
relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst,
304 U.S. 458, 464 (1938). A defendant waives the right to appeal if the defendant
“considered objecting . . . but ‘for some tactical or other reason rejected the idea.’”
United States v. Jimenez, 258 F.3d 1120, 1124 (9th Cir. 2001) (quoting United
States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc)). In contrast, where a
defendant fails to object because he “is unaware of a right that is being violated,”
the error is merely forfeited. Perez, 116 F.3d at 846. Forfeited rights are
reviewable for plain error, while waived rights are not reviewable. See United
States v. Olano, 507 U.S. 725, 733-34 (1993).
Here, the record demonstrates that Mr. Raya-Baez “considered objecting” to
the sentencing enhancement but “rejected the idea.” Prior to his sentencing, Mr.
2
Raya-Baez requested a continuance specifically to allow his counsel to undertake a
“substantial investigation into the defendant’s prior convictions in an effort to
make the necessary legal objections to their use as sentence enhancements.” The
motion explained, “Defendant Raya-Baez is adamant that the use of his prior
convictions as sentence enhancements is improper and has instructed counsel to
strenuously investigate and research all possible objections to their use for this
purpose.” This motion to continue demonstrates that Mr. Raya-Baez recognized a
potential problem with the characterization of kidnaping as a “crime of violence”
and that he knew he could object to the sentence enhancement. Instead, Mr. Raya-
Baez decided to take a different approach by arguing for a downward departure.
Cf. United States v. Si, 343 F.3d 1116, 1128 n.3 (9th Cir. 2003) (holding that the
defendant waived a sentencing entrapment argument where he acknowledged the
argument in a pre-sentencing letter to the U.S. Probation Office, but subsequently
did not object on those grounds before the district court).
Because Mr. Raya-Baez waived his challenge to the “crime of violence”
sentence enhancement, this claim is not reviewable. Olano, 507 U.S. at 733-34.
AFFIRMED.
3