United States of America, Plaintiff-appellee, v. David K. Johnston, Defendant-appellant, 42 F.3d 1403 (9th Cir. 1994)

MEMORANDUM^** 

David Keith Johnston was sentenced pursuant to a plea bargain to 137 months in custody following his guilty plea to one count of a four count indictment arising out of his flying a plane load of marijuana from Mexico to Arizona. The government successfully appealed the original sentence on the ground that the trial court had refused to treat two prior marijuana convictions as a basis for classifying Johnston as a career offender under Sentencing Guideline 4B1.2, and the case was remanded for resentencing. (C.A. No. 91-10291, unpublished memorandum decision dated August 24, 1994.)

On remand the court adopted the presentence report calculation of the offense level and criminal history with a sentencing range of 168 to 210 months, and sentenced Johnston to the low number of 168 months. This time Johnston appeals, contending that he should have been awarded a downward adjustment for acceptance of responsibility.

The government defends the challenged sentence on two grounds: (1) The plea bargain waived Johnston's right to appeal any sentence of 188 months or less, and accordingly the appeal should be dismissed; and (2) Even if the trial court had awarded a departure for acceptance of responsibility, the guideline range would have been from 151 to 188 months, and the sentence imposed was well within any possible adjusted offense level and range. The sentence imposed and appealed from was also 20 months below the cap that had been negotiated and bargained for in the plea agreement.

The waiver of appeal was voluntarily made, and was consistent with United States v. Navarro-Botello, 912 F.2d 318, 320 (9th Cir. 1990), cert. denied, 112 S. Ct. 1488 (1992). We need not reach the second ground argued by the government.

The judgment is AFFIRMED.