U.S. v. Terraza-Dominguez, TERRAZA-DOMINGUE

Decision Date21 June 1994
Docket NumberTERRAZA-DOMINGUE,No. 93-10704,D,93-10704
PartiesNOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Luis Albertoefendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Before: TANG, PREGERSON, and T.G. NELSON, Circuit Judges.

MEMORANDUM **

Luis Alberto Terraza-Dominguez appeals his 60-month sentence imposed following entry of a guilty plea to illegal reentry after deportation in violation of 8 U.S.C. Sec. 1326(b)(1).

Pursuant to Anders v. California, 386 U.S. 738 (1967), Terraza-Dominguez's counsel filed a brief identifying two possible issues for review: (1) the district court erred by denying Terraza-Dominguez a downward departure pursuant to U.S.S.G. Sec. 5K2.0 based on his extraordinary acculturation in the United States, and (2) Terraza-Dominguez is entitled to specific performance of his plea agreement. 1 Counsel also filed a motion to withdraw as counsel of record. We have jurisdiction under 28 U.S.C. Sec. 1291. We grant counsel's motion to withdraw and dismiss the appeal.

A defendant may waive the right to appeal in a plea agreement. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991).

Here, the plea agreement provided that Terraza-Dominguez "expressly waives the right to appeal his sentence on any ground ... provided that defendant receives a sentence that ... is within or below the applicable guideline range." The plea agreement further stated that Terraza-Dominguez understood "that the maximum penalty ... is five years incarceration." The district court imposed a 60-month sentence of imprisonment, a sentence within the applicable Guideline range.

Terraza-Dominguez does not suggest that his waiver was involuntary or unknowing. See United States v. DeSantiago-Martinez, 980 F.2d 582, 582-83 (9th Cir.1992) (waiver of right to appeal valid only if knowing and voluntary). Although counsel claims that Terraza-Dominguez "could make an argument concerning specific performance of the plea agreement," counsel does not identify that argument, nor could we discern a viable one. Furthermore, counsel acknowledges that the government performed its obligations under the plea agreement. Cf. United States v. Gonzalez, 16...

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