Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)
Annotate this CaseUNITED STATES of America, Plaintiff-Appellee,v.Elvis DAVIS, Defendant-Appellant.
No. 90-10504.
United States Court of Appeals, Ninth Circuit.
Submitted June 18, 1991.* Decided June 21, 1991.
Before BEEZER, WIGGINS and FERNANDEZ, Circuit Judges.
MEMORANDUM**
Elvis Davis appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines), following his conviction on a guilty plea for aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153 and 2241(c). Although he waived his right to appeal, Davis claims that the district court erred by failing to reduce his base offense level two points for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1. We decline to exercise jurisdiction to review this claim and we dismiss the appeal.
A defendant's voluntary waiver of his right to appeal does not render his plea agreement unenforceable.1 United States v. Navarro-Botello, 912 F.2d 318, 321-322 (9th Cir. 1990) (noting in dictum an exception where the "sentence imposed is not in accordance with the negotiated agreement").
Here, the government agreed to recommend a sentence at the lower end of the Guidelines range if the district court granted Davis a downward adjustment for acceptance of responsibility, which would have resulted in a range of 188 to 235 months. The parties agreed that the court was not bound by the government's recommendation, but that if the court imposed a sentence different from the one the government recommended, Davis could withdraw his guilty plea. Finally, Davis waived his right to appeal "any and all motions, defenses, ... and objections which [he] has asserted or could assert to th [e] prosecution and to the court's entry of judgment" (CR 53 at 4 (Plea Agreement)).
Prior to sentencing, the district court determined that Davis had used a knife in connection with the assault, and thus added 4 points to his base offense level pursuant to U.S.S.G. Sec. 2A3.1(b) (1). The district court also found that Davis had not accepted responsibility. Although this resulted in a sentencing range of 235-293 months, Davis elected to proceed with sentencing rather than withdraw his plea.2 The district court sentenced him to 264 months' imprisonment, in the middle of the appropriate guidelines range.
Davis was sentenced in strict accordance with his plea agreement. He "waived his right [to appeal the sentence] for the purpose of obtaining certain concessions from the Government and he may not now ignore his part of the bargain." Navarro-Bottello, 912 F.2d at 322. Therefore, we decline to review the claim he now raises and we dismiss the appeal.
DISMISSED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Generally, this court may review a sentence only if the sentence:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guidelines range ... or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
18 U.S.C. § 3742(a).
Davis argues for the first time in his reply brief that his case should be remanded for resentencing because he did not knowingly waive his right to appeal. Nonetheless, he did not seek to withdraw his plea even after the district court had determined that it would not grant an adjustment for acceptance of responsibility. Under these circumstances, we see no need for a supplemental brief on the issues Davis raises in his reply brief, and therefore we deny the U.S. Attorney's request to file one
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