United States of America, Plaintiff-appellee, v. John Joseph Yellowman, Defendant-appellant.united States of America, Plaintiff-appellee, v. John Joseph Yellowman, Defendant-appellant, 139 F.3d 909 (9th Cir. 1998)

MEMORANDUM^* 

John Joseph Yellowman appeals his conviction pursuant to two guilty pleas in two separate indictments to two counts of second degree murder within the confines of the Navajo Indian Reservation in violation of 18 U.S.C. §§ 1153, 1111 and 2. Yellowman contends that the district court erred in sentencing him pursuant to the Guidelines when it departed upward five levels.

The government contends that Yellowman waived his appellate rights as part of his plea agreement. At the plea hearing, however, the district court advised Yellowman that he retained some appellate rights, and the prosecutor did not object to the district court's statements. Pursuant to United States v. Buchanan, 59 F.3d 914, 918 (9th Cir.), cert. denied, 516 U.S. 970, 116 S. Ct. 430, 133 L. Ed. 2d 345 (1995), we conclude that Yellowman did not waive his right to appeal his sentence.

Yellowman contends that the district court erred in departing upward based on criminal purpose pursuant to U.S.S.G. § 5K2.9, and use of unlawful restraints pursuant to U.S.S.G. § 5K2.4. In light of the circumstances of these two murders, the district court did not abuse its discretion in departing upward from the calculated guideline range. See United States v. Sablan, 114 F.3d 913, 916 (9th Cir. 1997) (en banc); Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 2046, 135 L. Ed. 2d 392 (1996) (district court's decision to depart is entitled to substantial deference).¹  Accordingly, the district court is

AFFIRMED.