USA V. BRAULIO BARAJAS-ZARATE, No. 15-30358 (9th Cir. 2017)

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FILED NOT FOR PUBLICATION JAN 23 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. U.S. COURT OF APPEALS No. 15-30358 D.C. No. 4:14-cr-06041-EFS MEMORANDUM* BRAULIO BARAJAS-ZARATE, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding Submitted January 18, 2017** Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges. Braulio Barajas-Zarate appeals from the district court’s judgment and challenges the 60-month sentence imposed following his guilty-plea conviction for conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846. We dismiss. Barajas-Zarate challenges the district court’s denial of safety-valve relief * 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). under 18 U.S.C. § 3553(f). The government contends that this appeal is barred by a valid appeal waiver. We review de novo whether a defendant has waived his right to appeal. See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011). The terms of the appeal waiver in Barajas-Zarate’s plea agreement unambiguously encompass this appeal of his within-Guidelines sentence. See id. at 1205-06. Contrary to Barajas-Zarate’s contention, the record reflects that he knowingly and voluntarily waived his right to appeal. We decline to consider on direct appeal Barajas-Zarate’s claim that counsel was ineffective for failing to advise him of the scope of the waiver. See United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011). Accordingly, we dismiss pursuant to the valid waiver. See Harris, 628 F.3d at 1207. DISMISSED. 2 15-30358

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