NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 18 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 08-30369
Plaintiff - Appellee, D.C. No. 2:08-CR-00008-WFN-1
v.
MEMORANDUM *
ISIDRO IBARRA-RAYA,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Submitted November 3, 2009**
Seattle, Washington
Before: FERNANDEZ, KLEINFELD and CLIFTON, Circuit Judges.
Isidro Ibarra-Raya pled guilty to possessing more than 500 grams of cocaine
with intent to distribute it in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
§ 841(b)(1)(B)(ii), and 18 U.S.C. § 2. He now appeals his sixty-month sentence.
We affirm.
Ibarra-Raya first argues that his plea was not voluntary and intelligent
because he had neither sufficient time nor sufficient command of English to
understand the plea agreement and the plea hearing. Both Ibarra-Raya and his
attorney said at the hearing that there had been adequate time to review the
agreement, and the district court ensured that Ibarra-Raya understood what was
happening at the hearing. Ibarra-Raya’s choice was made with the information and
understanding necessary to choose intelligently between the available alternatives,
as our precedent requires. See United States v. Hernandez, 203 F.3d 614, 618 n.5
(9th Cir. 2000).
Ibarra-Raya also challenges the district court’s compliance with Federal
Rule of Criminal Procedure 11 at the plea hearing. The district court fully complied
with that rule. First, despite Ibarra-Raya’s assertion to the contrary, the district
court did advise him of the proof-beyond-a-reasonable-doubt standard that would
apply at trial. Second, the court informed Ibarra-Raya of the nature of the charge
by explaining the elements of the crime and ensured that Ibarra-Raya understood
them. See United States v. Covian-Sandoval, 462 F.3d 1090, 1095 (9th Cir. 2006).
Particularly, the court made clear both that the penalty for a guilty plea could
2
include up to forty years’ incarceration and that the court was not bound by the
sentence contemplated in the plea agreement. Finally, the court satisfied itself that
there was a factual basis for Ibarra-Raya’s plea by determining that Ibarra-Raya’s
admitted conduct constituted the charged offense. See McCarthy v. United States,
394 U.S. 459, 467 (1969).
Ibarra-Raya’s final arguments concern the district court’s compliance with
Federal Rule of Criminal Procedure 32 at sentencing. These arguments are
unpersuasive. First, the transcript of the hearing demonstrates that the district court
verified that Ibarra-Raya had reviewed the presentence report and had it read to
him in Spanish. Neither Ibarra-Raya nor his attorney said that Ibarra-Raya could
not understand the presentence report or that there had not been time to discuss it.
The district court, as it had at the plea hearing, ensured that Ibarra-Raya understood
what was happening at the sentencing hearing. Second, the transcript also shows
that both Ibarra-Raya and his attorney had ample opportunity to be heard and to
argue for a sentence they believed was appropriate before the district court
imposed its sentence. See United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008)
(en banc).
AFFIRMED.
3