FILED
NOT FOR PUBLICATION DEC 21 2011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. 09-50537
Plaintiff - Appellee, D.C. No. 5:06-cr-00075-SGL
v.
MEMORANDUM *
KAREN DENISE BERRY,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Karen Denise Berry appeals from the 72-month sentence imposed following
her guilty-plea conviction for conspiracy to defraud the United States, in violation
of 18 U.S.C. § 371, aiding and assisting in the preparation of false income tax
returns, in violation of 26 U.S.C. § 7206(2), and willful filing of a false income tax
*
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).
return, in violation of 26 U.S.C. § 7206(1). We have jurisdiction under 28 U.S.C.
§ 1291, and we dismiss.
Berry pleaded guilty pursuant to a written agreement that included an appeal
waiver. She contends that the appeal waiver is not enforceable because: (1) the
district court orally advised her that she had ten days to file a notice of appeal; (2)
her sentence violated the law; (3) she was not sentenced in conformity with the
plea agreement; and (4) the plea colloquy was inadequate due to the district court’s
failure to comply with the requirements of Federal Rule of Criminal Procedure
11(c)(3)(B).
Each of these contentions lack merit. The district court’s advisement to
Berry that she had ten days to file a written notice of appeal did not invalidate the
waiver provision. See United States v. Buchanan, 59 F.3d 914, 917-918 (9th Cir.
1995); United States v Schuman, 127 F.3d 815, 817 (9th Cir. 1997); see also
United States v. Lopez-Armenta, 400 F.3d 1176-77 (9th Cir. 2005) (there must be
evidence at the time of the entry of the plea that the defendant thought he or she
could appeal).
Berry’s sentence did not violate the law because it was authorized by the
judgment of conviction and was not in excess of the statutory maximum. United
States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999) (challenging the validity of an
2 09-50537
appeal waiver because the district court’s failure to comply with 18 U.S.C. §
3553(a) made the sentence illegal).
The sentence imposed was below the range specified by the plain language
of the plea agreement, and the agreement did not require that the losses be
apportioned among the individual defendants. See United States v. Nunez, 223
F.3d 956, 958 (9th Cir. 2000) (plea agreements are subject to contract law
standards of interpretation).
Finally, the district court’s failure to strictly comply with the requirements of
Fed. R. Crim. P. 11(c)(3)(B) did not affect Berry’s substantial rights. See United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (to establish plain error under
Rule 11, a defendant must show a reasonable probability that he would not have
entered the plea).
Accordingly, we enforce the valid appeal waiver. See United States v.
Watson, 582 F.3d 974, 986-87 (9th Cir. 2009).
DISMISSED.
3 09-50537