United States of America, Plaintiff-appellee, v. Alfonso Gonzalez-juarez, Defendant-appellant, 124 F.3d 213 (9th Cir. 1997)

MEMORANDUM^* 

Alfonso Gonzalez-Juarez appeals his sentence imposed after his guilty plea to possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). He contends that his waiver of his right to appeal should not be enforced and that the district court erred by making a two-level upward adjustment pursuant to U.S.S.G. § 2D1.1(b) (1) for possession of a dangerous weapon. We dismiss the appeal.

In his plea agreement, Gonzalez-Juarez waived "all rights to appeal." He contends that this waiver should be set aside because at sentencing, he and the government both took the position that he should not receive the weapon adjustment. He analogizes the upward adjustment to "an illegal sentence imposed in excess of a maximum statutory penalty." See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996) (listing exceptions to appeal waivers), cert. denied, 117 S. Ct. 1282 (1997). Gonzalez-Juarez's contention lacks merit; an erroneous sentence is not the same as an illegal one. See United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991) (waiver of right to appeal sentence would be nullity if it did not include waiver of right to appeal misapplication of guidelines).

DISMISSED.