United States v. Mark Person , 665 F. App'x 617 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30325
Plaintiff-Appellee, D.C. No.
2:14-cr-00115-RMP-1
v.
MARK ALLEN PERSON, ORDER*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Submitted December 8, 2016**
Seattle, Washington
Before: McKEOWN, TALLMAN, and CHRISTEN, Circuit Judges.
Mark Allen Person challenges the 37-month sentence imposed following his
guilty-plea conviction on one count of Mailing Threatening Communications in
violation of 18 U.S.C. § 876(c). Person signed a plea agreement (“Agreement”)
*
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).
waiving “his right to appeal the conviction and sentence if the Court imposes a
prison term of no higher than the applicable [guideline] range[.]” In the
Agreement, the parties stipulated to a base offense level of 12 but agreed the
district court would “determine the Defendant’s applicable sentencing guideline
range at the time of sentencing.” The Agreement stated that “the Defendant may
be a career offender,” potentially bringing the applicable guideline range to 37-46
months. The Agreement also informed Person of the government’s intent to seek a
two level increase under U.S.S.G. § 2A6.1(b)(2) for sending more than two letters.
An increase under U.S.S.G. § 2A6.1(b)(2) would bring the applicable guideline
range to 30-37 months even if the district court did not find Person a career
offender.
We conclude the district court did not err in determining the applicable
guideline range. Neither party disputes the Agreement was knowingly and
voluntarily entered. Accordingly, we conclude this appeal must be dismissed with
prejudice pursuant to Person’s waiver of his appeal rights. The mandate shall
issue forthwith.
DISMISSED.
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