FILED
NOT FOR PUBLICATION SEP 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10423
Plaintiff - Appellee, D.C. No. 4:11-cr-00957-CKJ-
HCE-1
v.
ATILANO DE JESUS RODRIGUEZ, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted September 10, 2013**
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and TIMLIN, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
Atilano de Jesus Rodriguez filed this appeal from the 30-month sentence he
received pursuant to his conviction for unlawful reentry in violation of 8 U.S.C.
§ 1326 in 2011. He seeks to contest the 16-level upward adjustment imposed
because of his prior conviction for sexual battery. We conclude he has waived his
appeal rights.
Rodriguez’s reentry conviction was entered on the basis of his guilty plea
that contained multiple ranges of sentences, depending upon the offense level that
the presentence report recommended. The plea agreement provided that Rodriguez
waived his right to appeal the conviction or any sentence that was consistent with
the agreement. When the magistrate judge accepted the plea, the magistrate judge
explained that the plea waiver meant Rodriguez agreed not to appeal, so long as the
district court imposed a sentence consistent with the level applicable to Rodriguez.
The district court then sentenced Rodriguez to a term that was consistent
with the applicable offense level. The appeal waiver applies. Rodriguez cites two
recent memorandum dispositions where we viewed an appeal waiver as
ambiguous. United States v. Banos-Mejia, 2013 WL 4532212 (9th Cir. Aug. 28,
2013); United States v. Aguilar-Balbuena, 475 F. App’x 222 (9th Cir. Aug. 2,
2012). In each of those cases, however, there was no clarifying colloquy. Here,
2
the magistrate judge explained the waiver and expressly asked Rodriguez whether
he understood he was waiving his right to appeal. There was a valid waiver.
The appeal is DISMISSED.
3