United States of America, Plaintiff-appellee, v. John Edward Gonzales, Aka Eddie, Defendant-appellant, 19 F.3d 30 (9th Cir. 1994)

MEMORANDUM^** 

John Edward Gonzales appeals his 96-month sentence imposed following entry of a guilty plea to two counts of unlawful use of a communication facility in violation of 21 U.S.C. § 843(b). Gonzales contends that the district court erred by failing to articulate its reasons for departing upward from the applicable United States Sentencing Guidelines sentencing range. The government counters that Gonzales waived his right to appeal his sentence as part of his plea agreement. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

An express waiver of the statutory right to appeal in a negotiated plea agreement is valid if made knowingly and voluntarily. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991). So long as the sentence imposed was in accordance with the plea agreement, the waiver is binding. Id.

Here, Gonzales entered into a plea agreement which provided that "sentence would be imposed in conformity with the Sentencing Reform Act and the [Sentencing Guidelines]." He also agreed that he would recommend jointly with the government "an upward departure to four years on each count, to be served consecutively, for a total sentence of eight years." This is exactly what occurred at sentencing. Gonzales' argument that the district court violated the Guidelines when it failed to state the reasons for the upward departure is disingenuous at best.

Because the sentence imposed was in accordance with the plea agreement, we enforce the waiver of the right to appeal and affirm the district court's judgment. See Bolinger, 940 F.2d at 480.

AFFIRMED.