United States v. Arce-Hernandez

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 21 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 25-558 Plaintiff-Appellee, D.C. No. v. 2:23-cr-01722-DHJ-2 NOE DE JESUS ARCE-HERNANDEZ, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding Submitted January 8, 2026** Phoenix, Arizona Before: HAWKINS, RAWLINSON, and BRESS., Circuit Judges.

Noe De Jesus Arce-Hernandez (Arce-Hernandez) appeals the sentence imposed by the district court, following his guilty plea to one count of distribution of methamphetamine. Arce-Hernandez asserts his right to appeal despite the

* 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). waiver in his plea agreement. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we dismiss the appeal.

Arce-Hernandez entered into a valid plea agreement in which he waived his right to appeal “any aspect of [his] sentence.” However, Arce-Hernandez contends that the district court vitiated this waiver when it stated during a change of plea hearing that Arce-Hernandez was waiving his right to appeal “so long as [his] sentence complie[d] with the written terms of [his] plea agreement and the Sentencing Guidelines.” See United States v. Nishida, 53 F.4th 1144, 1149 (9th Cir. 2022) (reviewing de novo “whether the district court has vitiated a valid appeal waiver”) (citation omitted).

To vitiate an “otherwise valid appeal waiver,” a court’s oral pronouncements must be “unambiguous and without qualification.” Id. (reasoning that only “clear, unequivocal statements that contradict waiver, such as ‘you have the right to appeal findings which I make today regarding sentencing,’” vitiate a waiver) (citation omitted). The court’s pronouncement to Arce-Hernandez was not sufficiently “clear [and] unequivocal” to vitiate Arce-Hernandez’s waiver. Id. (explaining that “equivocal statements that do not directly conflict with waiver, such as ‘you may have a right to appeal the sentence,’” do not vitiate a waiver) (citation omitted).

APPEAL DISMISSED.