United States v. Hector Cruz , 386 F. App'x 597 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10328
Plaintiff - Appellee, D.C. No. 1:07-cr-00268-JMS-3
v.
MEMORANDUM*
HECTOR CRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted June 18, 2010
Honolulu, Hawaii
Before: B. FLETCHER, PREGERSON and CLIFTON, Circuit Judges.
Appellant Hector Cruz pled guilty to distributing 50 grams or more of
methamphetamine and agreed to a waiver of the right to appeal. In exchange, the
government dropped all other charges against him. His attorney has filed an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Anders1 brief in this appeal and has moved to withdraw as counsel. Cruz has filed
no pro se supplemental brief in response to the court’s invitation to do so.
Having examined the record, we conclude that Cruz entered into the plea
agreement and agreed to the waiver of appellate rights knowingly and voluntarily,
and that the district court complied with Federal Rule of Criminal Procedure 11.
See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000).
The waiver of appellate rights to which Cruz agreed waives any challenge to
his sentence, unless the sentence exceeded the applicable guideline range as
determined by the district court, which it did not. Thus, the waiver applies to any
possible challenge to Cruz’s sentence, with two recognized exceptions: a claim that
the sentence did not comport with the terms of the plea agreement, and a claim that
the sentence violated the law. See United States v. Bibler, 495 F.3d 621, 624 (9th
Cir. 2007). Here, however, the sentence comported with the terms of the plea
agreement and is not unlawful. Accordingly we dismiss the appeal. We grant
counsel’s motion to withdraw.
DISMISSED; COUNSEL’S MOTION TO WITHDRAW GRANTED.
1
Anders v. California, 386 U.S. 738 (1967).
2