FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-10009 Plaintiff-Appellee,

D.C. No.

v.  CR-99-20217-JW

MARTIN CARDENAS,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of California

James Ware, District Judge, Presiding

Argued and Submitted

March 18, 2005—San Francisco, California

Filed May 4, 2005

Before: John T. Noonan, Sidney R. Thomas, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Noonan

4857
COUNSEL

Christopher Johns, San Rafael, California, for the defendantappellant. 

Amber Rosen, San Jose, California, for the plaintiff-appellee.

4858 UNITED STATES v. CARDENAS
OPINION

NOONAN, Circuit Judge: 

Martin Cardenas appeals the mandatory minimum sentence

he received after pleading guilty to three counts of possessing

heroin with intent to distribute, and one count of possessing

heroin and cocaine with intent to distribute. Although he

waived the right to appeal, he contends that the government

breached the plea agreement and that his sentence is illegal

because he was entitled to the safety valve codified at 18

U.S.C. § 3553(f). We hold that there was no breach by the

government and that the sentence was not illegal. We dismiss

the appeal. 

FACT AND PROCEEDINGS

During the month of September 1999, Cardenas on three

occasions sold a total of 50 ounces of heroin for a total

amount of $25,950. He was indicted November 24, 1999 and

in June 2000 entered into a written plea agreement with the

government admitting these acts as crimes in violation of 21

U.S.C. § 841(a), subject to a mandatory minimum sentence of

ten years imprisonment unless he qualified for the safety

valve. As part of this agreement, he stated, “I also agree to

waive any right I may have to appeal my sentence.” The government agreed “to recommend the Guidelines calculations

set out above [showing an adjusted offense level of 27] if the

Court determines that the mandatory minimum prison sentence does not apply.” Sentencing was postponed. 

On July 18, 2001, Cardenas signed a “Safety Valve Statement” to render himself eligible for safety valve relief under

18 U.S.C. § 3553(f). He confirmed that the government’s

investigative reports of his activities were “true and accurate.”

He admitted that he had sold drugs on more than the three

occasions he had pled to. He named his supplier as Bartolo

Sierra, a.k.a. El Pelotus. He admitted to making phone calls

UNITED STATES v. CARDENAS 4859
related to his selling of drugs. As to whether any family members were involved in selling drugs, he stated, “I cannot confirm this for the government for personal family reasons.” He

declared himself willing to answer further questions. 

A sentencing hearing was held on July 30, 2001. The government stated that in two safety valve interviews Cardenas

had not been “truthful and complete.” Sentencing was

deferred. A third safety valve interview was conducted by the

government’s attorney. According to his report to the court,

Cardenas stated “that he had never sold drugs before or outside of these three occasions.” The government attorney

added that in none of the three interviews had Cardenas been

“credible or complete.” Cardenas told the court, “I had never

sold any other drugs other than these.” The court then stated,

“It does appear to me that given the quantity of drugs

involved and the financial amounts involved that there is good

reason for the government’s question of the credibility of Mr.

Cardenas with respect to the nature of his activities. It also

appears that the inconsistencies in his various stories give rise

to doubt and he himself admits that he has not been forthcoming.” 

The court sentenced Cardenas to the statutory mandatory

minimum, ten years imprisonment. Cardenas appeals. 

ANALYSIS

Despite his knowing and unequivocal waiver of his right to

appeal his sentence, Cardenas argues three grounds why the

waiver does not hold. We consider them in turn. 

[1] Breach of the plea agreement. Cardenas argues that the

government “implicitly agreed” to support application of the

safety valve if Cardenas satisfied the statutory requirements

set by 18 U.S.C. § 3553(f)(5). It is difficult to see what provision of the plea agreement can be understood as an implication of a promise. Explicitly, the government promised to

4860 UNITED STATES v. CARDENAS
support the application if the court determined that the statutory conditions were met. The government made no other

promise. The court did not so determine. The government did

not breach the agreement. 

[2] Illegal sentence. Cardenas contends that he was entitled

to the safety valve and that therefore his sentence is illegal.

“An illegal sentence is one ‘not authorized by the judgment

of conviction’ or ‘in excess of the permissible statutory penalty for the crime.’ ” United States v. Vences, 169 F.3d 611,

613 (9th Cir. 1999) (quoting United States v. Fowler, 794

F.2d 1446, 1449 (9th Cir. 1986), cert. denied, 479 U.S. 1094

(1987)). Cardenas’ sentence is not illegal. His contention

turns out to be a recasting of the argument relative to the

safety valve. Cardenas’s recantation with regard to other drug

sales, he maintains, does not involve relevant conduct under

18 U.S.C. § 3553(f)(5). The irrelevance is hard to see. The

argument, moreover, does not go to the basis of the district

court’s scepticism that Cardenas had not fully disclosed all he

knew given “the quantity of drugs involved and the financial

amounts involved.” Cardenas tries to bolster his position by

saying that the investigative reports which he admitted to be

correct should have been part of the record. The court had the

substance of these reports through the pre-sentence report;

they did not change the court’s estimate of Cardenas’s credibility. 

[3] Disagreement with the sentencing court’s credibility

determination does not show that the sentence imposed was

illegal. Cardenas’s waiver of appeal holds. 

[4] Booker issue. The teaching of United States v. Booker,

125 S. Ct. 738 (2004), on the Sentencing Guidelines, 18

U.S.C. § 3553(b)(1), means that his waiver of appeal of the

sentence was involuntary and unknowing, Cardenas says. The

argument fails both because Booker does not bear on mandatory minimums and because a change in the law does not

UNITED STATES v. CARDENAS 4861
make a plea involuntary and unknowing. United States v.

Johnson, 67 F.3d 200, 202-03 (9th Cir. 1995). 

Appeal DISMISSED. 

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