FILED
NOT FOR PUBLICATION
MAR 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10038
Plaintiff-Appellee, D.C. No.
3:15-cr-08184-DGC-1
v.
JESUS BENIGNO LOPEZ-ZATARAIN, MEMORANDUM*
AKA Jesus Benigno Lopez Zatarain, AKA
Jesus Beningo Lopez Zatarain, AKA Jesus
B. Lopez-Zatarain,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted March 15, 2017**
San Francisco, California
Before: FERNANDEZ, MURGUIA, and WATFORD, Circuit Judges.
On September 29, 2015, Jesus Benigno Lopez-Zatarain entered into a
modified “fast-track” plea agreement with a reduced sentence of 18–24 months. On
*
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).
December 4, 2015, Lopez-Zatarain filed a motion to withdraw from the plea
agreement in order to argue for a variance below 18 months, which would not have
been possible under the plea agreement. The district court granted the motion.
Without the benefit of the reduced sentence in the plea agreement, Lopez-
Zatarain faced a Guidleines range of 27–33 months. The district court varied
downward and imposed a sentence of 21 months. At the sentencing hearing, the
judge stated, “It seems a bit unfair to give you a higher sentence for having
withdrawn from the plea agreement, but you did withdraw and now the
government is faced with the prospect of a possible appeal that they didn’t have
under the prior plea agreement.” Lopez-Zatarain did not object before the district
court, but on appeal he argues that the court vindictively increased his sentence.
We review the constitutionality of a sentence de novo. United States v. Leon
H., 365 F.3d 750, 752 (9th Cir. 2004). “When a defendant fails to raise a legal
objection at trial but raises the objection for the first time on appeal, we review
only for plain error.” United States v. Alferahin, 433 F.3d 1148, 1154 (9th Cir.
2006). We affirm.
The presumption of vindictiveness does not apply where a prosecutor
increases charges against a defendant who rejects a plea deal. Bordenkircher v.
Hayes, 434 U.S. 357, 365 (1978). The Supreme Court explained that the
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procedural costs imposed by a defendant who rejects a plea and puts the
government to its burden of proof at trial justify increased punishment without
triggering a presumption of vindictiveness. United States v. Goodwin, 457 U.S.
368, 381-82 (1982).
Here, Lopez-Zatarain’s decision to withdraw from the plea agreement in
order to preserve his right to appeal is analogous to a defendant who rejects a plea
agreement in order to preserve his right to trial. In both situations, the additional
burdens imposed by the defendant’s decision justify an increased sentence without
triggering a presumption of vindictiveness. See id.
Moreover, there is no actual evidence that the district court was vindictive
here. This case does not present a situation where Lopez-Zatarain appealed,
succeeded in gaining a reversal, and suffered a harsher sentence on remand.
Instead, the district court imposed a sentence six months below the Guidelines
range the first time it sentenced Lopez-Zatarain.
Finally, Lopez-Zatarain’s argument cannot withstand plain-error review.
Even assuming the court erred by imposing the 21-month sentence, the error was
not plain. Lopez-Zatarain has not presented any authority holding that a higher
sentence after a withdrawn guilty plea triggers the presumption of vindictiveness.
United States v. Hayat, 710 F.3d 875, 908 (9th Cir. 2013) (holding that plain-error
3
review “requires the court to find that the error was plain under existing law, rather
than subject to reasonable dispute”).
AFFIRMED.
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