NOT FOR PUBLICATION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, CLER K U.S. COURT OF APPEAL S2 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 Bueno

Saenz, (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 thi s appeal is barred by Appellant s ’ 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. To rres , 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 sentence s , the appeal

** The Honorable Dana L. Christensen, Chief United States District Judge fo r 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 arbitrari ly sentenced their co

- defendant, Jhon Salos

Garci a 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 St ates , 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. Ruiz

Chairez , 493 F.3d 1089, 109 1

– 9 2 (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 sentence s 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 m inimum, in ac cord 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 of4 16

- 50463

responsibility” warranted a shorter sentence than the Appellants and sentenced

accordingly. We conclude this decision is rational and affirm.

AFFIRMED.