FILED
NOT FOR PUBLICATION FEB 16 2011
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. 10-10149
Plaintiff - Appellee, D.C. No. 2:09-cr-00245-PMP-
LRL-1
v.
MARCELO GONZALEZ-MENDOZA, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Lawrence R. Leavitt, District Judge, Presiding
Submitted February 14, 2011 **
San Francisco, California
Before: THOMPSON and TALLMAN, Circuit Judges, and TARNOW, Senior
District Judge.***
Marcelo Gonzalez-Mendoza appeals the district court’s imposition of a
forty-one month sentence following his decision to plead guilty pursuant to the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Arthur J. Tarnow, Senior United States District Judge
for the Eastern District of Michigan, sitting by designation.
terms of a plea agreement to violating 8 U.S.C. § 1326(a) (illegal re-entry by a
deported alien). We have jurisdiction under 28 U.S.C. § 1291, and we dismiss
Gonzalez-Mendoza’s appeal.
The parties are familiar with the facts of the case so we do not repeat them
here. In his plea agreement, Gonzalez-Mendoza waived the right to appeal his
sentence unless the district court imposed a term of imprisonment above the
applicable Sentencing Guidelines range agreed upon by the parties—forty-one to
fifty-one months.1 His challenge thus concerns a sentencing issue he plainly
relinquished his right to appeal. United States v. Jeronimo, 398 F.3d 1149, 1153
(9th Cir. 2005) (“Our analysis begins with the fundamental rule that plea
agreements are contractual in nature and are measured by contract law standards.
1
Specifically, Gonzalez-Mendoza agreed:
In exchange for the concessions made by the United States in this plea
agreement, the Defendant knowingly and expressly waives the right to
appeal any sentence that is imposed within the applicable Sentencing
Guideline[s] range as determined by the parties, further waives the right
to appeal the manner in which that sentence was determined on the
grounds set forth in Title 18, United States Code, Section 3742 . . . . The
[D]efendant reserves the right to appeal any portion of the sentence that
is an upward departure that is above the advisory Sentencing Guidelines
range as determined by the parties.
Plea Memorandum at 3, United States v. Gonzalez-Mendoza, 2:09-cr-245-PMP-L
(D. Nev. Dec. 23, 2009).
2
This customary reliance on contract law applies to interpretation of an appeals
waiver within a plea agreement, and we will generally enforce the plain language
of a plea agreement if it is clear and unambiguous on its face.” (internal citation
and quotation marks omitted)).
Because the United States has raised a timely objection, and Gonzalez-
Mendoza has not raised even an argument as to why the plea agreement should not
be enforced, we see no cause to consider the merits of his appeal. United States v.
Jacobo Castillo, 496 F.3d 947, 954 (9th Cir. 2007) (en banc) (“Ordinarily, if an
appellant does not [expressly reserve his right to appeal an issue] and still raises
such issues on appeal, the government objects and the court dismisses the
appeal.”); Jeronimo, 398 F.3d at 1152–53.
DISMISSED.
3