United States v. Joseph Viola , 562 F. App'x 559 ( 2014 )

FILED
NOT FOR PUBLICATION MAR 13 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10091
Plaintiff - Appellee, D.C. No. 5:10-cr-00588-EJD
v.
MEMORANDUM*
JOSEPH J. VIOLA, a.k.a. Giuseppe Viola,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Joseph J. Viola appeals pro se from the district court’s judgment and
challenges his guilty-plea conviction and 105-month sentence for mail fraud, in
violation of 18 U.S.C. § 1341. We dismiss.
*
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 government argues that this appeal is barred by the appeal waiver in the
parties’ plea agreement. Viola contends that the waiver is unenforceable, asserting
that the government breached the plea agreement, primarily by recommending a
total offense level that was higher than that indicated in the plea agreement. We
review de novo whether a defendant has waived his right to appeal. See United
States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).
The record reflects that the government’s computation of the total offense
level was consistent with the calculations in the plea agreement. Viola’s remaining
allegations of breach are unavailing because they relate to actions taken by the
Probation Office, which was not a party to the plea agreement. Because the appeal
waiver applies and is enforceable, we dismiss. See id. at 988.
All pending motions are denied as moot.
DISMISSED.
2 12-10091