United States v. Carl Godfrey , 549 F. App'x 615 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50534
Plaintiff - Appellee, D.C. No. 8:09-cr-00060-JVS
v.
MEMORANDUM*
CARL LARUE GODFREY, a.k.a. Carl
Godfrey, a.k.a. Carl Laurue Godfrey,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT and THOMAS, Circuit Judges.
Carl Larue Godfrey appeals from district court’s judgment and challenges
the 70-month sentence imposed following his guilty-plea conviction for aiding and
abetting mail fraud, in violation of 18 U.S.C. §§ 2 and 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).
Godfrey contends that the district court procedurally erred at sentencing by
failing to hold a hearing on a disputed issue regarding the calculation of his
criminal history category. The government argues that the appeal is barred by a
valid appeal waiver. 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).
Godfrey contends that the appeal waiver does not apply because the district
court failed to calculate properly his criminal history and the government breached
the agreement because it failed to recommend a sentence at the bottom of the
applicable Guidelines range. The plain language of the appeal waiver
unambiguously encompasses the district court’s determination of Godfrey’s
criminal history category. See United States v. Harris, 628 F.3d 1203, 1206-07
(9th Cir. 2011). Further, the government did not breach the plea agreement
because it recommended a sentence at the bottom of the correctly calculated
Guidelines range. Accordingly, we dismiss this appeal in light of the valid appeal
waiver. See id. at 988.
DISMISSED.
2 11-50534