NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

MIGUEL DUQUE HURTADO 

SIMISTERRA, 

Defendant-Appellant.

No. 16-50463 

D.C. No. 

3:15-cr-00336-JAH-2 

MEMORANDUM*

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

WINSTON GABRIEL VALDEZ-MEDINA, 

Defendant-Appellant.

No. 16-50467 

D.C. No. 

3:15-cr-00336-JAH-1 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

LEONARDO ABAD BUENO-SAENZ, 

No. 16-50470 

D.C. No. 

3:15-cr-00336-JAH-3 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAR 30 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-50463 

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted March 7, 2018

Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,** Chief 

District Judge.

Miguel Hurtado Simisterra, Winston Valdez-Medina, and Leonardo BuenoSaenz, (collectively “Appellants”), each appeal their 90-month sentence imposed 

following their guilty pleas to possession of cocaine with intent to distribute on 

board a vessel, in violation of 46 U.S.C. § 70503. 

The Government argues that this appeal is barred by Appellants’ appeal 

waiver, a condition in their respective plea agreements. However, we have 

recognized that an appeal waiver cannot bar a constitutional challenge. See United 

States v. Torres, 828 F.3d 1113, 1124–25 (9th Cir. 2016); see also United States v. 

Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (recognizing that an appeal waiver will 

not be enforced where the sentence imposed is illegal or unconstitutional). 

Because Appellants raise a constitutional challenge to their sentences, the appeal 

 

** The Honorable Dana L. Christensen, Chief United States District 

Judge for the District of Montana, sitting by designation.
3 16-50463 

waiver does not bar their appeal.

Appellants argue that their equal protection and due process rights were 

violated when the district court arbitrarily sentenced their co-defendant, Jhon Salos 

Garcia to a sentence of only 70-months imprisonment. Because Appellants do not 

allege any disparate treatment on the basis of a suspect or quasi-suspect 

classification, the sentencing disparity need only survive rational basis review. See 

Chapman v. United States, 500 U.S. 453, 465 (1991) (applying rational basis 

review to defendant’s equal protection challenge that statutory drug-weight 

calculation for sentencing purposes was arbitrary); see also United States v. RuizChairez, 493 F.3d 1089, 1091–92 (9th Cir. 2007) (applying rational basis review to 

defendant’s equal protection challenge that the sentencing guidelines arbitrarily 

applied to illegal reentrants). 

We conclude that the district court had a rational basis for the sentences it 

imposed on Appellants. At sentencing, the Government claimed that co-defendant 

Salos Garcia deserved a lower sentence than Appellants because he had 

demonstrated a “super acceptance of responsibility” by asking for one year longer 

than the mandatory minimum, in accord with the Government’s side deal. Though 

the side deal was available to each Appellant, only Salos Garcia accepted it. Salos 

Garcia’s attorney characterized this as the exercise of good judgment based on the 

“realities” of the offense. The district court agreed that this “super acceptance of 
4 16-50463 

responsibility” warranted a shorter sentence than the Appellants and sentenced 

accordingly. We conclude this decision is rational and affirm. 

AFFIRMED.