United States of America v. Luis Hernandez Sandoval

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS HERNANDEZ SANDOVAL,
Defendant-Appellant.
No. 15-30131
D.C. No.
3:14-cr-05105-RBL-1
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted August 29, 2016**
Seattle, Washington
Before: HAWKINS, and McKEOWN, Circuit Judges, and EZRA,*** District
Judge.
FILED
AUG 31 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.

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Luis Hernandez Sandoval appeals his sentence of 120 months for conspiracy
to distribute methamphetamine and heroin in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), and 846. The sentence was imposed pursuant to a plea agreement that
included a waiver of appeal, which stated: “Defendant acknowledges that by
entering the guilty plea(s) . . . [he] waives to the full extent of the law” any right to
direct appeal of his sentence under 18 U.S.C. § 3742 and any right to collateral
attack, “except as it relates to the effectiveness of legal representation.” We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and review de novo
the validity of an appeal waiver. See United States v. Lightfoot, 626 F.3d 1092,
1093–94 (9th Cir. 2010).
Hernandez Sandoval contends that the district court impermissibly
referenced his race, ethnicity, or national origin during the sentencing hearing,
thereby rendering the sentence unconstitutional and the appeal waiver
unenforceable. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996)
(“[T]he waiver of a right to appeal may be subject to certain exceptions such as . . .
racial disparity in sentencing among codefendants . . . .”). We disagree.
“Whether [the defendant’s] right to due process was violated hinges upon
the district court’s actual basis for imposing a stricter sentence.” United States v.
Borrero-Isaza, 887 F.2d 1349, 1352 (9th Cir. 1989). The district court made
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passing reference to “strong family ties” in “Spanish culture” and referred to
“Hispanic families.” These statements were not the basis for enhancing Hernandez
Sandoval’s sentence, which fell well below the Guideline range, but were made in
response to defense counsel’s attempt to minimize the fact that three of Hernandez
Sandoval’s children had been convicted of dealing drugs. Nor did the court’s
observation that Hernandez Sandoval was the “patriarch” of a close knit family,
many of whom had come to court that day to support him, constitute an
impermissible reference to his race or national origin. Cf. Borrero-Isaza, 887 F.2d
at 1353 (heightened sentence violated due process because the district court
impermissibly concluded that “[the defendant] comes from a country of origin,
namely, Colombia, which is a country that supplies much of the narcotics to this
country . . . [they] are the total scourge of this country right now, and I am not
going to tolerate it, and I want the message to go to Colombia that we are not going
to accept this kind of thing.”).
Because Hernandez Sandoval’s waiver is valid and enforceable, we dismiss
the appeal. See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011)
(“Absent some miscarriage of justice . . . we will not exercise [appellate]
jurisdiction to review the merits of [an] appeal if we conclude that [the defendant]
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knowingly and voluntarily waived the right to bring the appeal.” (internal
alterations and quotation marks omitted)).
DISMISSED.
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