United States of America, Plaintiff-appellee, v. Alejandro Rosas-diaz, Defendant-appellant, 59 F.3d 177 (9th Cir. 1995)

MEMORANDUM^** 

Alejandro Rosas-Diaz appeals his 210-month sentence imposed following a guilty plea to aiding and abetting possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a) (1), 18 U.S.C. § 2. Rosas-Diaz contends that his attorney was incompetent by failing to argue at sentencing for a downward departure based upon aberrant behavior. We have jurisdiction under 28 U.S.C. § 1291 and dismiss the appeal.

A defendant may waive the right to appeal in a plea agreement. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991).

Rosas-Diaz agreed in his plea agreement that, if the Government complies with the plea agreement and he receives "a sentence within the range of the Government's recommendation, he will waive appeal of his sentence and pretrial motions." The parties further contemplated that the applicable adjusted offense level would be 35, resulting in a Guideline range of 168 to 210 months. The district court determined that the applicable Guidelines range was 168 to 210 months and sentenced Rosas-Diaz to 210 months.¹ 

Rosas-Diaz does not claim that his waiver was involuntary or unintelligent, see United States v. DeSantiago-Martinez, 38 F.3d 394, 395 (9th Cir. 1992), cert. denied, 115 S. Ct. 939 (1995), or that the government breached the plea agreement, see United States v. Torres, 999 F.2d 376, 378 (9th Cir. 1993). Because the district court sentenced Rosas-Diaz within the applicable Guidelines range, in accordance with the plea agreement, we enforce the appellate waiver. See Bolinger, 940 F.2d at 480.

DISMISSED.