NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. JOSE RAMON CRUZ

- GAMEZ, AKA Brian Colindre

- Hernandez, AKA Jose Cruz, AKA Jose Ramon Cruz Martinez, AKA Jose Martinez Cruz, AKA Normin Ricardo Ramos

- Calis, AKA Normin Ricardo Ramos

Callis, AKA Carlos Torres

- Hernandez,

Defendant

- Appellant. No. 19

- 10 335
D.C. No. 3:19

- cr - 00196

- WHA

- 1

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding Submitted September 8 , 2020 * *
Before: TASHIMA , SILVERMAN , and OWENS , Circuit Judges.
Jose Ramon Cruz

- Gamez appeals from the district court’s judgment and challenges the 63

- month sentence imposed following his guilty

- plea conviction for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

SEP 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 19

- 10335

possession of fentanyl with intent to distribute, in violation of 21 U.S.C. § 84 1(a)(1) , (b)(1)(C) , and illegal reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm

. Cruz

- Gamez contends that his sentence is substantively unreasonable. The government argues that this claim is covered by the appeal waiver in the parties’ plea agreement. W e decline to enforce the waiver, and instead affirm on the merits. See United States v. Jacobo Castil lo , 496 F.3d 94 7 , 956

- 57 (9th Cir. 2007) (en banc) (appeal waiver is not a jurisdictional bar). Contrary to Cruz

- Gamez’s argument, the district court did not abuse its discretion in imposing the 63

- month
sentence , which was at the bottom of the unconteste d Guidelines range. See Gall v. United States , 552 U.S. 38, 51 (2007). The sentence is substantively reasonable in light of the 18 U.S.C. § 3 5 53(a) sentencing factors and the totality of the circumstances, including the failure of Cruz

- Gamez’s previous sentences to deter him. See Gall , 552 U.S. at 51.
Cruz

- Gamez also asks us to remand for resentencing in light of COVID

- 19. However, we have n o authority to vacate a sentence that is procedurally sound and substantively reasonable. 1 See United States v. Rangel , 697 F.3d 795 , 800 (9th Cir.

1 Cruz

- Gamez acknowledges that he is not alleging any procedural defects in the sentence. His reliance on United States v. Ameline , 40 9 F.3d 1073 (9th Cir. 2005) (en banc), to argue that this court can remand for the district court to reconsider his sentence even absent any procedural or substantive error , is misplaced. The holding in Ameline was predicated on the substantial change in sentencing law3 19

- 10335

2012). This disposition is without prejudice to any right Cruz

- Gamez may have to seek compassionate relea se under 18 U.S.C. § 3582(c)(1)(A).
AFFIRMED .

announced by the Supreme Court in United State v
. Booker , 543 U.S. 220 (2005)

. Cruz

- Gamez points to no such legal change here.