United States of America v. Miguel Duque Hurtado Simisterra

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL DUQUE HURTADO
SIMISTERRA,
Defendant-Appellant.
No. 16-50463
D.C. No.
3:15-cr-00336-JAH-2
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WINSTON GABRIEL VALDEZ-MEDINA,
Defendant-Appellant.
No. 16-50467
D.C. No.
3:15-cr-00336-JAH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEONARDO ABAD BUENO-SAENZ,
No. 16-50470
D.C. No.
3:15-cr-00336-JAH-3
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2 16-50463
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted March 7, 2018
Pasadena, California
Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,** Chief
District Judge.
Miguel Hurtado Simisterra, Winston Valdez-Medina, and Leonardo Bueno-
Saenz, (collectively “Appellants”), each appeal their 90-month sentence imposed
following their guilty pleas to possession of cocaine with intent to distribute on
board a vessel, in violation of 46 U.S.C. § 70503.
The Government argues that this appeal is barred by Appellants’ appeal
waiver, a condition in their respective plea agreements. However, we have
recognized that an appeal waiver cannot bar a constitutional challenge. See United
States v. Torres, 828 F.3d 1113, 1124–25 (9th Cir. 2016); see also United States v.
Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (recognizing that an appeal waiver will
not be enforced where the sentence imposed is illegal or unconstitutional).
Because Appellants raise a constitutional challenge to their sentences, the appeal
** The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.

-- 2 of 4 --

3 16-50463
waiver does not bar their appeal.
Appellants argue that their equal protection and due process rights were
violated when the district court arbitrarily sentenced their co-defendant, Jhon Salos
Garcia to a sentence of only 70-months imprisonment. Because Appellants do not
allege any disparate treatment on the basis of a suspect or quasi-suspect
classification, the sentencing disparity need only survive rational basis review. See
Chapman v. United States, 500 U.S. 453, 465 (1991) (applying rational basis
review to defendant’s equal protection challenge that statutory drug-weight
calculation for sentencing purposes was arbitrary); see also United States v. Ruiz-
Chairez, 493 F.3d 1089, 1091–92 (9th Cir. 2007) (applying rational basis review to
defendant’s equal protection challenge that the sentencing guidelines arbitrarily
applied to illegal reentrants).
We conclude that the district court had a rational basis for the sentences it
imposed on Appellants. At sentencing, the Government claimed that co-defendant
Salos Garcia deserved a lower sentence than Appellants because he had
demonstrated a “super acceptance of responsibility” by asking for one year longer
than the mandatory minimum, in accord with the Government’s side deal. Though
the side deal was available to each Appellant, only Salos Garcia accepted it. Salos
Garcia’s attorney characterized this as the exercise of good judgment based on the
“realities” of the offense. The district court agreed that this “super acceptance of

-- 3 of 4 --

4 16-50463
responsibility” warranted a shorter sentence than the Appellants and sentenced
accordingly. We conclude this decision is rational and affirm.
AFFIRMED.

-- 4 of 4 --