FILED
NOT FOR PUBLICATION FEB 24 2012
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. 11-30002
Plaintiff - Appellee, D.C. No. 1:09-cr-00248-EJL
v.
MEMORANDUM *
JESUS RAUL-CRUZ,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-30037
Plaintiff - Appellee, D.C. No. 1:09-cr-00248-EJL
v.
VICTOR COPADO,
Defendant - Appellant.
Appeals from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted February 21, 2012 **
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
In these related appeals, Jesus Raul-Cruz and Victor Copado appeal from the
respective 87-month and 100-month sentences imposed following their guilty-plea
convictions for conspiracy to distribute cocaine and marijuana, in violation of 21
U.S.C. §§ 841(a)(1) and 846. We have jurisdiction under 28 U.S.C. § 1291. In
No. 11-30002, we dismiss in light of a valid appeal waiver. In No. 11-30037, we
affirm.
In No. 11-30002, Raul-Cruz’s valid appeal waiver bars this appeal
challenging the district court’s imposition of a sentencing enhancement for
possession of a firearm. See United States v. Joyce, 357 F.3d 921, 922 (9th Cir.
2004). We decline to consider Raul-Cruz’s contention, raised for the first time in
his reply brief, that he is entitled to an exception to the waiver. See United States
v. Rearden, 349 F.3d 608, 614 n.2 (9th Cir. 2003).
In No. 11-30037, Copado contends that the district court erred by imposing a
two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm.
This contention fails because the district court adequately found that the possession
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 11-30002, 11-30037
of firearms by co-conspirators was reasonably foreseeable to Copado, see United
States v. Benford, 574 F.3d 1228, 1234 (9th Cir. 2009), and this finding was not
clearly erroneous in light of the nature of the conspiracy and the ample evidence of
firearm possession. See United States v. Garcia, 909 F.2d 1346, 1349-50 (9th Cir.
1990).
No. 11-30002: DISMISSED.
No. 11-30037: AFFIRMED.
3 11-30002, 11-30037