FILED
NOT FOR PUBLICATION AUG 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30207
Plaintiff - Appellee, D.C. No. 1:08-CR-00232-BLW-1
v.
MEMORANDUM *
JOSE MANUAL HERRERA-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted August 6, 2010 **
Seattle, Washington
Before: CANBY, NOONAN and BERZON, Circuit Judges.
Jose Manual Herrera-Lopez appeals from his 46-month sentence imposed
following a guilty plea to one count of unlawful reentry in violation of 8 U.S.C. §
1326. Because Herrera-Lopez did not object to the adequacy of the Rule 11 plea
*
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).
colloquy before the district court, we review for plain error. E.g., United States v.
Watson, 582 F.3d 974, 987 (9th Cir. 2009). We dismiss in light of the valid appeal
waiver.
The record does not support Herrera-Lopez’s claim that the appeal waiver is
invalid because the district court failed to satisfy Rule 11(b)(1)(N) during the plea
colloquy. The district judge informed Herrera-Lopez that he was “giving up the
majority of [his] rights to appeal the . . . sentence . . . . other than those few that are
delineated in the plea agreement” and confirmed that he understood he was doing
so. The court therefore “addressed the defendant personally” regarding the appeal
waiver and “determine[d] that [he] underst[ood]” the meaning of the waiver in
compliance with F ED. R. C RIM. P. 11(b)(1)(N). See United States v. Siu Kuen Ma,
290 F.3d 1002, 1005 (9th Cir. 2002). In addition, Herrera-Lopez confirmed—both
in writing before the Rule 11 colloquy and orally during it—that he read the entire
plea agreement, understood its terms, and discussed it with his attorney. See id. at
1005; see also United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008). Further,
the district court provided notice that it could depart from the sentencing guidelines
and was not required to discuss potential guideline adjustments. See United States
v. Barragan-Espinoza, 350 F.3d 978, 982 (9th Cir. 2003). Therefore, any error by
the district court in failing to discuss with Herrera-Lopez the specific terms of the
exceptions to the appeal waiver did not affect his substantial rights. See Ross, 511
F.3d at 1236. Cf. United States v. Arellano-Gallegos, 387 F.3d 797 (9th Cir. 2004)
(setting aside an appeal waiver where there was a “wholesale failure” to mention
it).
Because the district court did not commit plain error in its Rule 11 colloquy,
we enforce the appeal waiver and dismiss the appeal.1 See, e.g., Watson, 582 F.3d
at 987.
DISMISSED.
1
Because Herrera-Lopez knowingly and voluntarily waived his right to
appeal, we do not reach the sentencing enhancement question. See Ma, 290 F.3d at
1005 n.1.