United States v. Pedro Morales-Cardenas , 404 F. App'x 147 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30120
Plaintiff - Appellee, D.C. No. 2:09-cr-00010-LRS
v.
MEMORANDUM *
PEDRO MORALES-CARDENAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, Chief Judge, Presiding
Submitted November 16, 2010 **
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Pedro Morales-Cardenas appeals from the district court’s order denying his
motion, under Fed. R. Crim. P. 35(a), to correct the judgment. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The government contends that the appeal waiver in Morales-Cardenas’ plea
*
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).
agreement precludes our reaching the merits of Morales-Cardenas’ claim on
appeal. Because Morales-Cardenas challenges the sentence imposed in the written
judgment as unconstitutional, the appeal waiver does not apply, and we may reach
the merits. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (citations
omitted).
Morales-Cardenas contends that the district court erred when it declined to
correct the written judgment to reflect the sentence of nine months imprisonment
pronounced at the sentencing hearing. This contention fails because the court’s
oral pronouncement of sentence was ambiguous. Although an unambiguous oral
pronouncement controls a directly conflicting written judgment, see United States
v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974) (per curiam), when “the
oral pronouncement is ambiguous or open to reasonable interpretation . . . , it
cannot possibly ‘control.’” United States v. O’Brien, 789 F.2d 1344, 1347 (9th
Cir. 1986).
AFFIRMED.
2 10-30120