United States of America, Plaintiff-appellee, v. Chester Bernstein, Defendant-appellant, 106 F.3d 409 (9th Cir. 1996)

MEMORANDUM^** 

Chester Bernstein appeals his sentence following his guilty plea to two counts of wire fraud under 18 U.S.C. §§ 1343 and 1342. We find that Bernstein waived his right to appeal and therefore we affirm.

Bernstein argues that he should retain the right to appeal his sentence because he did not make the required "knowing and voluntary waiver" of that right. United States v. DeSantiago-Martinez, 38 F.3d 394, 395 (9th Cir. 1992); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991). Bernstein complains that the district court failed to discuss with him specifically the appeal waiver during the Rule 11 guilty plea hearing.

However, the district court did not have to discuss the waiver at the Rule 11 hearing. United States v. DeSantiago-Martinez, 38 F.3d at 395. Instead, "a finding that the waiver is knowing and voluntary is sufficient." Id.

The negotiated plea agreement which Bernstein and his attorney signed specifically provided that he "waive [d] the right to appeal all matters pertaining to this case and any sentence imposed by the Court within the applicable guideline range, except an upward departure by the Court." Furthermore, the government summarized the entire plea agreement, including the appeal waiver provision, at the Rule 11 hearing. Bernstein and his lawyer responded that they had discussed the plea and agreed to all its provisions.

These circumstances demonstrate that Bernstein knowingly and voluntarily made an express waiver of his right to appeal the sentence.

The district court's sentence is AFFIRMED.