Free Mandate of 9th Circuit - District Court of Arizona - Arizona

UNITED STATES COURT OP APPEALS .
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-10387
D.C. No. CR-04-01224-SRB
Plaintiff- Appellee,
v.
AMENDED JUDGMENT
JULIO ERNESTO MARTINEZ-
ESCOBAR, I
Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona
(Phoenix). p
On consideration whereof, it is now here ordered and adjudged by this
Court, that the appeal in this cause be, and herebyare DISMISSED.
Filed and entered 09/ l 3/06
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Case 2:04—er—01224-SRB Document 35 Filed 10/19/2006 Page1 of4

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Nor Fon PUBLICATION SEP 10 2000
UNITED STATES COURT or APPEALS CATUE-%¤?·?=iTg§??P'¥A?€ERK
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-103 87
Plaintiff- Appellee, D.C. No. CR-04-01224-SRB
v.
MEMoRAN1;>UM*
JULIO ERNESTO MARTINEZ-
ESCOBAR, ·
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted September ll, 2006**
San Francisco, Califomia
Before: FERNANDEZ, W. FLETCHER, and RAWLINSON, Circuit Judges.
Julio Ernesto Martinez-Escobar (Martinez—Eseobar) appeals the district
court’s sentence pursuant to his plea agreement. Martinez Escobar admits that he .
knowingly, voluntarily, and intelligently waived his right to appeal, but contends
lc This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
H This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Case 2:04—or—01224-SBB Document 35 Filed 10/19/2006 Page 2 of 4

that this waiver is invalid because the sentence exceeded the district court’s
statutory authority post-Booker.
The district court did not exceed its statutory authority by accepting the plea
agreement and imposing sentence under the sentencing guidelines, as agreed by
the parties. Although "the scheme of downward and upward departures [has been]
essentially replaced by the requirement that judges impose a ‘reasonable’
sentence," this court treats "such so-called departures as an exercise of post-
Baoker discretion to sentence a defendant outside of the applicable guidelines
range." United States v. Mohamed, - - — F.3d ---— , No. 05-50253, 2006 WL
2328722, *6 (9th Cir. August ll, 2006). Moreover, an "illegal sentence" is one
"not authorized by the judgment of conviction or in excess ofthe permissible
statutory penalty for the crime." United States v. Cardenas, 405 F.3d 1046, 1048
(9th Cir. 2005) (citation and internal quotation marks omitted). As Martinez-
Escobar does not contend that his sentence was either unauthorized by the
conviction or in excess of the permissible statutory penalty, the sentence was not
illegal and the exception to a valid appeal waiver does not apply. Because
Martinez-Escobar admits his waiver was otherwise knowing and voluntary, the
waiver is valid. United States v. Nguyen, 235 F .3d 1179, 1182 (9th Cir. 2000).
0 2
Case 2:04—cr—01224-SRB Document 35 Filed 10/19/2006 Page 3 of 4

Thus, the appeal must be dismissed. See United States v. Pacheco-Navarette, 432
F.3d 967, 971 (9th Cir. 2005).
DISMISSED. U
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