28 F.3d 110 (9th Cir. 1994), 93-10704, U.S. v. Terraza-Dominguez

Docket Nº:93-10704.
Citation:28 F.3d 110
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Luis Alberto TERRAZA-DOMINGUEZ, Defendant-Appellant.
Case Date:July 07, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 110

28 F.3d 110 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Luis Alberto TERRAZA-DOMINGUEZ, Defendant-Appellant.

No. 93-10704.

United States Court of Appeals, Ninth Circuit

July 7, 1994

Submitted June 21, 1994. [*]

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the Northern District of California; No. CR-93-20053-JW, James Ware, District Judge, Presiding.

N.D.Cal.

DISMISSED.

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. § 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. § 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. § 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...

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