U.S. v. Vences, 98-10095

• Decision Date: 26 February 1999
• Docket Number: No. 98-10095,98-10095
• Citation: 169 F.3d 611
• Parties: 99 Cal. Daily Op. Serv. 1492, 1999 Daily Journal D.A.R. 1914 UNITED STATES of America, Plaintiff-Appellee, v. Jorge VENCES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 611

169 F.3d 611

99 Cal. Daily Op. Serv. 1492, 1999 Daily

Journal D.A.R. 1914

UNITED STATES of America, Plaintiff-Appellee, v. Jorge VENCES, Defendant-Appellant.

No. 98-10095.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 14, 1999.

Decided Feb. 26, 1999.

Mark W. Coleman, Fresno, California, for the defendant-appellant.

Kevin P. Rooney, Assistant United States Attorney, Fresno, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California Robert E. Coyle, District Judge, Presiding. D.C. No. CR F-96-5332-REC

Before: ALDISERT, ¹ NOONAN and TROTT, Circuit Judges.

NOONAN, Circuit Judge:

Jorge Vences appeals his sentence for violation of 21 U.S.C. § 841(a)(1). We dismiss the appeal for lack of jurisdiction.

PROCEEDINGS

On October 15, 1997 Vences entered into a plea agreement by which he agreed to plead guilty to possession with the intent to distribute 28 packages containing approximately 29 kilograms of cocaine. He acknowledged that the maximum potential sentence was life imprisonment. He waived each of his constitutional rights as to a trial. The plea agreement further stated: "The defendant expressly waives his right to appeal and to collaterally attack any matter in connection with this prosecution. This agreement does not, however, prevent the defendant from appealing his sentence based on a claim of illegality."

At the sentencing hearing on February 9, 1998, counsel for Vences asked the court to disregard two past DUI convictions and sentence Vences on the basis of a Criminal History Category of I rather than the Category of III recommended by the Probation Office in its Presentence Report. The court refused, noting that the Probation Office had already disregarded two offenses and also disregarded the purity of the cocaine as a basis for upward departure. The government added: "the purity involved is indicative of one who is at a high level in a narcotic trafficking organization. The Probation Officer originally contemplated departing upward based on the purity, but in light of the circumstances, I believe that the way the Probation Officer has calculated the offense level is appropriate." The court stated: "Yes, I am satisfied it is properly calculated." The court called for further comment from defense counsel, who, after further argument, said: "If the court is not going to consider that his prior criminal history is overstated, I would ask for a sentence at the low end of the guideline range...." The court noted that the government had recommended the middle of the range.

The court imposed a sentence of 14 years and 1 month, followed by a term of supervised release of 5 years. The court informed the defendant that he had waived his right to appeal but "still ha[d] the right to appeal any sentence that is greater than that authorized In the Judgment later signed by the court the court failed to explain the "reasons for imposing the sentence," as required by 18 U.S.C. § 3553. Vences now appeals his sentence, arguing this failure constitutes error.

                by the statute."   The court then asked, "Any other matters that should be taken care of?"   Both counsel replied no
                

ANALYSIS

Vences contends that this court has jurisdiction to hear his appeal because, while he generally waived his right to appeal in the plea agreement, he preserved the right to appeal an "illegal sentence." He further argues that, in this case, his sentence is illegal because the court did not express the reasons for the sentence as required by 18 U.S.C. § 3553(c). This statute states:

The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence--

(1) is of the kind, and within the range, described in subsection (a)(4) and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range;...."

The court did not comply with the statute. The relevant question is whether this issue is properly before us on appeal. We hold that it is not, for two reasons.

First. Vences forfeited the objection when it was not made to the district court. Review is therefore for plain error, and plain error does not require us to take notice of it. United States v....