FILED
NOT FOR PUBLICATION MAY 31 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10183
Plaintiff - Appellee, D.C. No. 4:13-cr-00338-JSW
v.
MEMORANDUM*
DION MARLIN NICHOLS,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted May 24, 2016**
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
Dion Marlin Nichols appeals from the district court’s judgment and
challenges the 108-month sentence imposed following his guilty-plea conviction
for possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).
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).
Nichols contends that his sentence is illegal because the district court
violated his rights to due process and effective assistance of counsel at sentencing
by relying, without notice, on evidence outside the record to discredit a defense
expert. The government argues that this appeal should be dismissed based on an
appeal waiver contained in the parties’ plea agreement. We review de novo
whether to enforce an appeal waiver. See United States v. Watson, 582 F.3d 974,
981 (9th Cir. 2009). The record does not support Nichols’s contention that the
district court rejected the conclusions of psychologist Dr. Charles Flinton based on
its experience with Dr. Flinton in another case. To the contrary, the record reflects
that the district court acted within its discretion by rejecting Dr. Flinton’s
conclusions in light of the actual evidence of Nichols’s admitted history. See
United States v. Yi, 704 F.3d 800, 807 (9th Cir. 2013). Accordingly, Nichols’s
sentence is not illegal, and we dismiss this appeal in light of the valid appeal
waiver. See Watson, 582 F.3d at 988.
DISMISSED.
2 15-10183