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

UNITED STATES COURT OF APPEALS
FOR THE NINTI-I CIRCUIT
UNITED STATES OF AMERICA, N0. 04-10121
D.C. No. CR-03-50l88-DGC
p Plaintiff - Appellee,
V.
JUDGMENT
MANUEL NUNEZ—NUNEZ, . ‘
Defendant — Appellant.
Appeal from the United States District Court for the District of Arizona
(Phoenix).
This cause came on to be heard on the Transcript of the Record from the
United States District Court for the District of Arizona (Phoenix) and was duly
submitted.
On consideration whereof, it is now here ordered and adjudged by this
Court, that the judgment of the said District Court in this cause be, and hereby is
AFFIRMED.
Filed and entered l 1/09/05
A TRUE ccpv
c:AT1-iv A. CATFERSON
Clerk of Ccurt
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Case 2:03-cr-50188-DGC Document 21 Filed 12/O1/2 Page 1 of 3

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS F I L E D
FOR THE NINTH CIRCUIT Nov gg gggg
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UNITED STATES OF AMERICA, No. 04-l0l2l
Plaintiff - Appellee, D.C. No. CR-03-50188-DGC
v.
MEMoRANDUM*
MANUEL NUNEZ—NUNEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted October 18, 2005
San Francisco, California
Before: D.W. NELSON, RAWLINSON, and BEA, Circuit Judges.
1. Manuel Nunez—Nunez’s appeal is not barred by the appeal waiver in the
Arizona plea agreement because the waiver did not encompass his right to appeal
the revocation of his supervised release.
"This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Case 2:03-cr—50188-DGC Document 21 Filed 12/O1/2005 Page 2 of 3

2. A defendant’s Sixth Amendment right is implicated only when "a judge
seeks to impose a sentence that is not solely based on ‘facts reflected in the jury
verdict or admitted by the defendant."’ United States v. Booker, 125 S. Ct. 738,
749 (2005) (quoting Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004))
(emphasis added). Because Nunez-Nunez admitted the facts upon which the
additional sentence was based, no Sixth Amendment violation occurred.
3. The government’s agreement to recommend the low end of the Guidelines
range did not extend to sentencing for the supervised release violation. See United
States v. Gerace, 997 F.2d 1293, 1294-95 (9th Cir. 1993).
4. Because Nunez-Nunez was given actual notice at the sentencing hearing of
the terms of his supervised release, the violations of which served as the bases for
the revocation, his sentence was lawfully imposed. See United States v. Ortano-
Higareda, 421 F.3d 917, 922 (9th Cir. 2005).
AFFIRMED.
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