NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30090
Plaintiff-Appellee, D.C. No. 2:15-cr-00133-SMJ-3
v.
CARLOS MANUEL FLEITAS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Carlos Manuel Fleitas appeals from the district court’s judgment and
challenges the 30-month sentence imposed following his guilty-plea conviction for
conspiracy to commit access device fraud, in violation of 18 U.S.C. § 1029(a)(2),
(b)(2). We dismiss.
*
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).
Fleitas argues that the district court erred by declining to order his sentence
to run concurrently with a sentence imposed in the Southern District of Florida for
a separate criminal conviction. The government contends that this appeal is barred
by a valid appeal waiver. We review de novo whether a defendant has waived his
right to appeal. See United States v. Bibler, 495 F.3d 621, 623 (9th Cir. 2007).
Notwithstanding the fact that the plea agreement did not limit the district court’s
discretion to impose a fully consecutive sentence, Fleitas agreed without
qualification to waive his right to appeal his sentence. Contrary to Fleitas’s
contention, the court’s alleged misapplication of the Guidelines does not render his
sentence unlawful such that the waiver is unenforceable. See id. at 624 (illegal
sentence exception to enforceability of waiver applies if sentence exceeds statutory
maximum or is unconstitutional); see also United States v. Martinez, 143 F.3d
1266, 1271 (9th Cir. 1998) (“When a plea agreement expressly waives a
defendant’s right to appeal a sentence, the waiver extends to an appeal based on an
incorrect application of the sentencing guidelines.”). Accordingly, we dismiss
pursuant to the valid appeal waiver. See United States v. Watson, 582 F.3d 974,
988 (9th Cir. 2009).
DISMISSED.
2 18-30090