United States of America v. Victor Marin Victorio

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR MARIN VICTORIO,
Defendant - Appellant.
No. 14-50132
D.C. No. 8:11-cr-00012-DOC-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted October 21, 2015**
Pasadena, California
Before: IKUTA and OWENS, Circuit Judges, and SESSIONS,*** District Judge.
Appellant Victor Victorio was convicted of conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. § 846, following a jury trial before the
FILED
OCT 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.

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district court. He appeals his sentence of 292 months of incarceration followed by
ten years of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
Victorio’s only claim is that the district court erred by relying upon a
stipulation regarding drug quantity and type at sentencing. Victorio acknowledges
that his counsel agreed to the stipulation, and that neither he nor his counsel
objected to the stipulation at any point before the district court. But he argues that
the district court should have inquired as to whether he personally understood and
assented to the stipulation because he did not sign it or otherwise affirmatively
demonstrate assent.
His argument is foreclosed by United States v. Ferreboeuf, 632 F.2d 832
(9th Cir. 1980). In Ferreboeuf, this court held that “when a stipulation to a crucial
fact is entered into the record in open court in the presence of the defendant, and is
agreed to by defendant’s acknowledged counsel, the trial court may reasonably
assume that the defendant is aware of the content of the stipulation and agrees to it
through his or her attorney. Unless a criminal defendant indicates objection at the
time the stipulation is made, he or she is ordinarily bound by such stipulation.” Id.
at 836. In this case, Victorio does not dispute that the stipulation was (1) entered
into the record in open court, (2) in his presence, and (3) agreed to by his counsel.
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And he makes no claim that he objected to the stipulation at any point before the
district court. Ferreboeuf is thus directly on point, and Victorio’s claim fails.
Victorio’s attempts to get around Ferreboeuf are unpersuasive. Contrary to
his suggestion, Ferreboeuf was not abrograted by Apprendi v. New Jersey, 530
U.S. 466 (2000). See United States v. Hernandez-Hernandez, 431 F.3d 1212, 1219
(9th Cir. 2005) (citing Ferreboeuf with approval post-Apprendi). Apprendi
broadened the class of disputed facts that must be decided by a jury; it does not
apply when a defendant waives the right to have a particular fact determined by the
jury via stipulation. See United States v. Shimoda, 334 F.3d 846, 849-50 (9th Cir.
2003); see also United States v. Silva, 247 F.3d 1051, 1060 (9th Cir. 2001). And
Victorio’s frequent objections before, during, and after trial do not distinguish the
facts of this case from Ferreboeuf. To the contrary, Victorio’s general
disinclination to agree with the government made it all the more reasonable for the
district court to interpret his silence as agreement with the contents of the drug
stipulation.
Even assuming Victorio could distinguish Ferreboeuf, he cannot show that
any error in this case was “plain.” Among other things, an error must be “clear or
obvious” in order to be plain. United States v. Castillo-Marin, 684 F.3d 914, 918
(9th Cir. 2012). Victorio has not cited a single case, and we have not found one,
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that stands for the proposition that a stipulation as to a crucial fact is invalid if not
personally signed or agreed to by a criminal defendant. Therefore, any error in this
case was not plain.
AFFIRMED.
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