Timothy Allen Gallegos v. United States , 51 F.3d 280 ( 1995 )

51 F.3d 280

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Timothy Allen GALLEGOS, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 94-16509.

United States Court of Appeals, Ninth Circuit.

Submitted March 21, 1995.*
Decided March 29, 1995.

Before: SNEED, POOLE, and BRUNETTI, Circuit Judges.

1

MEMORANDUM**

2

Timothy Allen Gallegos, presently incarcerated at a state correctional facility, appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2255 motion to vacate, set aside or correct his federal sentence pursuant to his guilty plea of making false statements in application of a passport in violation of 18 U.S.C. Sec. 1542; fraud and related activity in connection with identification documents in violation of 18 U.S.C. Sec. 1028(a)(3); and false use of a Social Security number in violation of 42 U.S.C. Sec. 408(a)(7)(A).

3

Gallegos contends that the district court misapplied the sentencing guidelines by enhancing his offense level for minimal planning, obstruction of justice, and based on his escape status. "[A]n express waiver of the right to appeal in a negotiated plea of guilty is valid if knowingly and voluntarily made." United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991). Gallegos does not contend that his waiver of his right to raise a direct appeal or to bring a collateral proceeding to challenge his sentence was not knowing or involuntary. Moreover, the plea agreement provided that Gallegos was subject to a possible maximum term of imprisonment of five years, whereas Gallegos was sentenced to only fifteen months. Because we find that the district court did not err in enforcing Gallegos's waiver of his right to challenge his sentence, "we do not consider his underlying claims that the district court misapplied the guidelines." Id.

4

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3