NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

HECTOR MANUEL GOMEZ 

RODRIGUEZ, 

Defendant-Appellant.

No. 22-10250 

D.C. No. 

1:19-cr-00161-DAD-BAM-1 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Argued and Submitted December 14, 2023 

San Francisco, California

Before: KOH, H.A. THOMAS, and DESAI, Circuit Judges.

Mr. Gomez Rodriguez pled guilty to conspiracy to manufacture over 1,000 

marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 846 after being arrested 

during a marijuana grow site raid. As part of his plea agreement, he agreed to an 

appellate waiver. At the end of his sentencing hearings, the district court found that 

Mr. Gomez Rodriguez was ineligible for a safety valve exemption from the statutory 

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

except as provided by Ninth Circuit Rule 36-3.

FILED

DEC 27 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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mandatory minimum sentence, 18 U.S.C. § 3553(f)(2), because he had possessed a 

firearm at the grow site. The court sentenced him to a mandatory minimum term of 

120 months with a five-year supervised release period. On appeal, Mr. Gomez 

Rodriguez challenges his sentence and asserts that the appellate waiver does not 

apply. We have jurisdiction under 18 U.S.C. § 3742. We dismiss in part and affirm 

in part.

We review whether a defendant has waived his right to appeal by plea 

agreement de novo. United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004). We 

typically review the constitutionality of a sentence de novo. United States v. 

Hungerford, 465 F.3d 1113, 1116 (9th Cir. 2006). But when a defendant raises an 

issue for the first time on appeal, we review for plain error. See United States v. 

Olano, 507 U.S. 725, 731 (1993).

1. We dismiss Mr. Gomez Rodriguez’s appeal in part because he 

knowingly and voluntarily agreed to the plea agreement, and the plain language of 

the agreement includes a waiver of his right to appeal his sentence. See Davies v. 

Benov, 856 F.3d 1243, 1246–47 (9th Cir. 2017) (“A defendant’s waiver of his rights 

to appeal . . . is generally enforced if (1) the language of the waiver encompasses his 

right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily 

made” (internal citation omitted)). Although an appellate waiver does not prevent 

challenges to “illegal” sentences, United States v. Torres, 828 F.3d 1113, 1125 (9th 
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Cir. 2016), a sentence is only “illegal if it exceeds the permissible statutory penalty 

for the crime or violates the Constitution,” United States v. Bibler, 495 F.3d 621, 

624 (9th Cir. 2007).

1 Therefore, this exception does not permit Mr. Gomez 

Rodriguez to appeal the district court’s refusal to apply the safety valve statute to his 

sentence. See United States v. Wells, 29 F.4th 580, 585 (9th Cir. 2022) (declining to 

extend meaning of “illegal sentence” to encompass sentences potentially violating

18 U.S.C. § 3553). The exception does, however, cover his constitutional claim that 

his sentence violatesthe Eighth Amendment. See id. at 587. Accordingly, we dismiss 

Mr. Gomez Rodriguez’s safety valve claim, but reach the merits of his constitutional 

claim.

2. The district court’s sentence does not violate the Eighth Amendment. 

The Eighth Amendment forbids sentences that are “grossly disproportionate” to the 

crime. Graham v. Florida, 560 U.S. 48, 59–60 (2010). When a defendant challenges 

his sentence, we first compare “the gravity of the offense to the severity of the 

sentence.” United States v. Hammond, 742 F.3d 880, 884 (9th Cir. 2014) (quoting 

United States v. Williams, 636 F.3d 1229, 1232 (9th Cir. 2011)). If the initial 

comparison “leads to an inference of gross disproportionality,” we then “compare 

1 Mr. Gomez Rodriguez asks us to interpret “illegal sentence” to include a 

sentence which is based on a finding of safety valve ineligibility, but our circuit’s 

precedent forecloses us from doing so. See United States v. Wells, 29 F.4th 580, 585 

(9th Cir. 2022); United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999).
4 

the defendant’s sentence with the sentences received by other offenders in the same 

jurisdiction and with the sentences imposed for the same crime in other 

jurisdictions.” Id. (quoting Graham, 560 U.S. at 60). 

Here, the first step of the analysis is dispositive. Mr. Gomez Rodriguez was 

involved in growing 4,494 marijuana plants that damaged federal land, and the 

district court imposed the mandatory minimum sentence under 21 U.S.C. § 

841(b)(1)(A)(vii). As applied to Mr. Gomez Rodriguez’s offense, the sentence 

imposed does not give rise to “an inference of gross disproportionality,” Hammond,

742 F.3d at 884 (quoting Graham, 560 U.S. at 60), especially considering the 

“substantial deference” we grant to Congress’s authority in determining the 

punishments for federal crimes, Solem v. Helm, 463 U.S. 277, 290 (1983); see also 

United States v. Albino, 432 F.3d 937, 938 (9th Cir. 2005) (per curiam). 

We DISMISS in part and AFFIRM in part.