United States of America, Plaintiff-appellee, v. Phillip Levine, Defendant-appellant, 145 F.3d 1342 (9th Cir. 1998)

MEMORANDUM^* 

Introduction

Defendant-Appellant Phillip Levine ("Levine") appeals the 57-month sentence imposed following his guilty plea to wire fraud and aiding and abetting in violation of 18 U.S.C. §§ 1343 and 2.

We AFFIRM.

Analysis

The Government argues that Levine waived his right to appeal. Although the written plea agreement contained an express waiver provision, the district court orally advised Levine at the sentencing hearing of the following: "The defendant and counsel know that you have an opportunity to appeal this sentence ... I understand what the memo provides for, but I think there may be an obligation to advise him."

The parties disagree over the message conveyed by this advisement. But any ambiguity concerning Levine's waiver of appeal cast by the district court's instruction should have been challenged by the Government. See U.S. v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997). In light of the district court's oral advisement that Levine had an opportunity to appeal and the Government's failure to object, the waiver in the plea agreement does not bar Levine's appeal. See U.S. v. Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995).

Levine contends that the district court failed to realize that it had the authority, based upon his medical condition, to depart downward from the sentencing guidelines pursuant to U.S.S.G. § 5H1.4. However, the record shows that the district court explicitly considered Levine's medical condition. In rejecting downward departure, the district court was merely exercising its discretion. The district court was not operating under the mistaken belief that it lacked the authority to depart. Therefore, we decline to review the district court's refusal to depart downward. See U.S. Calozza, 125 F.3d 687, 693 (9th Cir. 1997); U.S. v. Beldon, 957 F.2d 671, 676 (9th Cir. 1992).

AFFIRMED.