United States v. James O'Neill , 475 F. App'x 235 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 13 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30106
Plaintiff - Appellee, D.C. No. 2:10-cr-00160-EJL-1
v.
MEMORANDUM*
JAMES ROY O’NEILL,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted August 6, 2012**
Seattle, Washington
Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.
James Roy O'Neill appeals his sentence resulting from a guilty plea to
cocaine and money laundering offenses. We grant the government's motion to
dismiss because O'Neill knowingly and voluntarily waived his right to appeal.
*
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).
A waiver is enforceable if the defendant knowingly and voluntarily waives
his rights and the wording of the waiver covers the grounds raised on appeal.
United States v. Bibler, 495 F.3d 621, 623-24 (9th Cir. 2007) (citing United States
v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005)). Because O'Neill did not object
to the plea colloquy in district court, we review under the plain error standard. See
United States v. Jimenez-Dominguez, 296 F.3d 863, 866 (9th Cir. 2002) (citing
United States v. Vonn, 535 U.S. 55 (2002)). Plain error requires the defendant to
show “‘a reasonable probability that, but for the error, he would not have entered
the [guilty] plea.’” United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008)
(alteration in original) (quoting United States v. Dominguez Benitez, 542 U.S. 74,
76 (2004)).
O'Neill claims that the district court failed to comply with Federal Rule of
Criminal Procedure 11, but he fails to argue that any alleged failure led him to
plead guilty. The district court did not discuss a special assessment, contrary to
Federal Rule of Criminal Procedure 11(b)(1)(L), but the special assessment was
discussed in the plea agreement that O’Neill acknowledges reviewing with his
lawyer. O’Neill does not show that the district court’s failure to discuss the special
assessment led to his guilty plea; in fact, the substance of his appeal does not even
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mention the special assessment. O’Neill similarly fails to argue that any of the
district court’s other variations from Rule 11 reasonably led him to plead guilty.
O’Neill’s appeal does not fall within the plea waiver’s exceptions. The plea
agreement allows an appeal if the district court “exercised its discretion under 18
U.S.C. § 3553(a) to impose a sentence that exceeds the advisory Sentencing
Guidelines range.” O’Neill’s 180-month sentence was below the advisory
sentencing guidelines range of 188-235 months. O’Neill attempts to dispute the
calculation of the sentencing guidelines range, but the range calculation does not
fall within the plea waiver’s exceptions.
O'Neill knowingly and voluntarily waived his right to appeal. The
government’s motion to dismiss is therefore GRANTED. Appeal DISMISSED.
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