United States v. Perlaza-Ortiz
Docket: No. 05-50841
Court: Court of Appeals for the Ninth Circuit; January 18, 2007; Federal Appellate Court
Segundo Misael Perlaza-Ortiz pleaded guilty to conspiracy to possess and distribute approximately 180 kilograms of cocaine aboard a vessel under U.S. jurisdiction, violating the Maritime Drug Law Enforcement Act (MDLEA). The district court sentenced him to 70 months in prison, prompting Perlaza-Ortiz to appeal. Perlaza-Ortiz first contended that the indictment should be dismissed for failing to state that the vessel was "stateless." However, by pleading guilty unconditionally, he waived his right to challenge the indictment's sufficiency. Even if he hadn't waived this right, his challenge would fail since the indictment did allege the vessel was stateless, complying with 46 App. U.S.C. 1903(c)(1)(A). Next, he argued the sentence's reasonableness under the U.S. Sentencing Guidelines and the Booker ruling. The district court's use of the November 2004 Guidelines was not erroneous, as they allowed for a downward adjustment for his mitigating role, resulting in a base offense level of 34 instead of 38. This adjustment did not present an ex post facto issue since the new guidelines were more favorable. The court also granted Perlaza-Ortiz further reductions for being a minor participant and for acceptance of responsibility. The district court considered various factors under 18 U.S.C. 3553(a) when imposing the sentence, distinguishing this case from United States v. Diaz-Argueta, where the court only referenced the Guidelines. The court emphasized the seriousness of the offense, the need for deterrence, and Perlaza-Ortiz's personal circumstances. Ultimately, the court deemed a 70-month sentence necessary to fulfill the purposes of sentencing outlined in section 3553(a). The appeal was affirmed, and the ruling is not to be published or cited as precedent, except as permitted by 9th Cir. R. 36-3.