Opinion
D.C. No. CR-91-0275-WBE
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted July 12, 2000.
Appeal from the United States District Court for the Southern District of California, William B. Enright, District Judge, Presiding.
Before RYMER, KLEINFELD, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Felipe Vasquez-Navarro appeals his 120-month sentence imposed following his guilty plea conviction for conspiracy to manufacture and distribute 418.57 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1).
Vasquez contends that the government breached the plea agreement, thus invalidating his waiver of appeal. Vasquez further argues that the district court erred in refusing his request for an evidentiary hearing. We need not reach the latter argument because we conclude that the waiver is valid and dismiss the appeal.
The court reviews de novo whether Vasquez waived his statutory right to appeal. See United States v. Aguilar-Muniz, 156 F.3d 974, 976 (9th Cir.1998). The alleged violation of a plea agreement is also reviewed de novo. See United States v. Diamond, 53 F.3d 249, 252 (9th Cir.), cert. denied, Diamond v. United States, 516 U.S. 925 (1995).
At the sentencing hearing, the government moved to dismiss the remaining counts of the indictment and noted that Vasquez had waived his right to appeal. Neither defendant nor his counsel objected or cited any breach of the plea agreement.
The government's reliance on the Probation Office report regarding the safety value complied with the terms of the plea agreement. The government's decision to defer to the district court on the criminal history prong of the safety valve provision, moreover, actually worked to defendant's benefit. Furthermore, the court imposed a lesser custodial sentence than the government recommended. We conclude that no breach occurred. Defendant thus had no right under the literal terms of the agreement to appeal the sentence.
Vasquez's waiver of his right to appeal is valid. See United States v. Torres, 999 F.2d 376, 378 (9th Cir.1993) (per curiam) (waiver of appeal valid where no breach of plea agreement). The appeal is DISMISSED.