United States v. Richard Nickles , 544 F. App'x 736 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50240
Plaintiff - Appellee, D.C. No. 8:10-cr-00155-CJC-1
v.
MEMORANDUM*
RICHARD H. NICKLES,
AKA Richard H. Nickels,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted November 6, 2013**
Pasadena, California
Before: FISHER and CLIFTON, Circuit Judges, and SINGLETON, Senior District
Judge.***
*
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).
***
The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
Defendant Richard Nickles pled guilty to one count of mail fraud and one
count of securities fraud and was sentenced to 144 months’ imprisonment. On
appeal, he raises a number of challenges to his sentence. The government argues
that this appeal is barred by Nickles’s waiver of his right to appeal. We dismiss the
appeal.
We review whether a defendant has waived his right to appeal de novo. See
United States v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997) (per curiam).
To determine whether the district court’s statements during the sentencing
hearing regarding Nickles’s right to appeal his sentence render the waiver
unenforceable, we focus on “both the court’s statement[s] and the defendant’s
reasonable expectations about his rights.” United States v. Arias-Espinosa, 704
F.3d 616, 618 (9th Cir. 2012). Although the court advised Nickles that he had a
right to challenge his sentence on appeal, the government immediately objected on
the basis of the plea agreement’s appellate waiver, leading the court to qualify its
advice. As a result, the sum of the court’s statements advising Nickles of a right to
appeal his sentence was neither unambiguous nor without qualification. See id. at
619; United States v. Watson, 582 F.3d 974, 987–88 (9th Cir. 2009). In addition,
the government’s objection itself put Nickles on notice that the government
intended to enforce the waiver notwithstanding the court’s statements regarding his
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right to appeal, defeating any reasonable expectations of appealing his sentence
that he may otherwise have had. See Schuman, 127 F.3d at 817; United States v.
Buchanan, 59 F.3d 914, 918 (9th Cir. 1995).
Nickles’s argument that the government’s alleged breach of the plea
agreement renders the appellate waiver unenforceable is without merit. The literal
terms of the plea agreement required the government to recommend a sentence no
higher than the low end of the applicable Sentencing Guidelines range. See United
States v. Myers, 32 F.3d 411, 413 (9th Cir. 1994) (per curiam). The government
satisfied this obligation by recommending a low-end sentence in its three written
sentencing submissions and explicitly referring to and abiding by these written
submissions at the sentencing hearing. Myers is distinguishable because in that
case the government failed to make any recommendation at all until after the
defendant had already been sentenced. Id. We also reject Nickles’s argument that
the government must utter the words “low end” in making a recommendation at the
sentencing hearing.
DISMISSED.
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