United States v. Luis Hernandez-Gonzalez

FILED
NOT FOR PUBLICATION MAY 18 2012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. 11-10197

Plaintiff - Appellee, D.C. No. 4:09-cr-02661-FRZ

v.
MEMORANDUM *
LUIS EDUARDO HERNANDEZ-
GONZALEZ, a.k.a. Luis Hernandez-
Gonzalez,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding

Submitted May 15, 2012 **

Before: CANBY, GRABER, and M. SMITH, Circuit Judges.

Luis Eduardo Hernandez-Gonzalez appeals from the 57-month sentence

imposed following his guilty-plea conviction for reentry after deportation, in

*
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).
violation of 8 U.S.C. § 1326. We dismiss.

Hernandez-Gonzalez contends that the district court’s failure to sentence

him to a term comparable to the term that he would have received had he accepted

the government’s fast-track plea offer resulted in an unwarranted sentencing

disparity that rendered his sentence unreasonable. Although he concedes that he

waived his right to appeal, he contends that the appeal waiver is unenforceable, as

the government impermissibly conditioned the award of a third point under

U.S.S.G. § 3E1.1(b) on his accession to the waiver. Hernandez-Gonzalez

acknowledges that we held in United States v. Johnson, 581 F.3d 994 (9th Cir.

2009), that the government may condition the award of a third point under

U.S.S.G. § 3E1.1(b) on the defendant’s waiver of the right to appeal, but he argues

that Johnson was wrongly decided. We are bound by our precedent, see United

States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir. 2009), and dismiss the

appeal in light of the valid appeal waiver, see United States v. Nguyen, 235 F.3d

1179, 1182 (9th Cir. 2000).

DISMISSED.

2 11-10197