United States of America, Plaintiff-appellee, v. Melvin Jerome Scott, Defendant-appellant, 141 F.3d 1182 (9th Cir. 1998)

MEMORANDUM¹ 

Melvin Jerome Scott appeals from his guilty plea conviction and 21-month sentence for importation of 12.82 kilograms of marijuana, in violation of 21 U.S.C. § 952 and 960, and possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a) (1).

The government argues that this appeal should be dismissed because Scott waived his right to appeal in his plea agreement. We agree. In the plea agreement, Scott expressly waived his right to appeal "unless the court imposes a custodial sentence greater than the high end of the offense level recommended by the government pursuant to this agreement." In the plea agreement, the parties agreed to an adjusted offense level of 10. The parties also explicitly agreed that there would be "no agreement as to defendant's Criminal History Category" (emphasis in original). Pursuant to the plea agreement, the government recommended that Scott be sentenced to 15 months, the low end of the range for a level 10 offense level and a criminal history category of IV. The court sentenced Scott to the high end of the range for a level 10 offense in light of Scott's "amazing criminal history record." Because the district court did not depart upward, the waiver remained fully operative.

We reject Scott's contention that he did not waive his right to appeal the district court's determination of his criminal history category. Scott expressly agreed that there would be no agreement as to Scott's criminal history category. He preserved his right to appeal only if his sentence was greater than the high end of the offense level recommend by the government. Because Scott's sentence was within the offense range recommended by the government, we lack jurisdiction to review the sentence. See United States v. Bolinger, 940 F.2d 478, 479-80 (9th Cir. 1991).

DISMISSED.