FILED
NOT FOR PUBLICATION DEC 1 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50622
Plaintiff - Appellee, D.C. No. 3:13-cr-02943-LAB
v.
MEMORANDUM*
HERIBERTO ESQUIVEL,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Heriberto Esquivel appeals from the district court’s judgment and challenges
the 27-month sentence imposed following his guilty-plea conviction for
transportation of illegal aliens and aiding and abetting, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (a)(1)(A)(v)(II). We dismiss.
*
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).
Esquivel contends that the district court improperly relied at sentencing on
facts disclosed during a cooperation debriefing, and that the sentence is
substantively unreasonable. The government contends that this appeal should be
dismissed based on the appeal waiver in the parties’ plea agreement. We review de
novo whether an appellant has waived his right to appeal. See United States v.
Joyce, 357 F.3d 921, 922 (9th Cir. 2004).
As relevant here, Esquivel waived any right to appeal his sentence, except to
challenge the applicability of the substantial-risk enhancement under U.S.S.G.
§ 2L1.1(b)(6), and to challenge a custodial sentence “above the high end of the
guideline range recommended by the Government pursuant to this agreement at the
time of sentencing.” The district court did not impose the substantial-risk
enhancement, and Esquivel received a sentence within the Guidelines range
recommended by the government at sentencing. Accordingly, neither of the appeal
waiver’s relevant exceptions applies, and the waiver is enforceable. Contrary to
Esquivel’s argument, the fact that he did not anticipate this application of the
waiver does not render the waiver unenforceable. See United States v. Johnson, 67
F.3d 200, 202-03 (9th Cir. 1995).
DISMISSED.
2 13-50622