United States of America, Plaintiff-appellee, v. David Fimbres, Defendant-appellant, 952 F.2d 408 (9th Cir. 1992)

MEMORANDUM^** 

The negotiated plea agreement states that Fimbres waives his right to appeal. But the waiver is binding only if the government complies with the plea agreement, which specifies that Fimbres be sentenced in accordance with the Guidelines. He alleges that the amount of marijuana for which he was sentenced was improperly determined, and thus that his sentence does not comply with the Guidelines.

Fimbres is incorrect for two reasons. First, the conspiracy to which Fimbres pled guilty had an object of importing 1000 pounds of marijuana; he is responsible for that amount. USSG § 2D1.4; United States v Alvarez-Cardenas, 902 F2d 734 (9th Cir1990). In any event, he was actually arrested with 887 pounds of marijuana, and we are not persuaded by Fimbres's argument that the moisture in the marijuana was improperly included. USSG § 2D1.1 ("the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance"); see Chapman v United States, 111 SCt 1919 (1991) (weight of LSD carrier medium properly included in sentencing).

Under either theory the base offense level is 28. USSG § 2D1.1. Because Fimbres's sentence does not conflict with the plea agreement, he has waived his right to appeal. United States v Navarro-Botello, 912 F2d 318, 321 (9th Cir1990).

AFFIRMED.