United States v. Lorena Rodriguez , 406 F. App'x 187 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 16 2010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. 09-50488
Plaintiff - Appellee, D.C. No. 3:08-cr-03763-JLS
v.
MEMORANDUM *
LORENA VIVINA RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted December 9, 2010 **
Pasadena, California
Before: PREGERSON and CLIFTON, Circuit Judges, and HOLLAND, Senior
District Judge.***
*
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).
***
The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
Rodriguez’s appellate waiver is enforceable. The district court’s oral
pronouncement does not supersede the waiver. The district court merely stated
that Rodriguez could contest whether her waiver was enforceable before an
appellate court, not that Rodriguez could appeal her sentence on the merits.
Further, the government objected to any suggestion by the district court that
Rodriguez had a right to appeal. See United States v. Buchanan, 59 F.3d 914,
917-18 (9th Cir. 1995). The government did not breach the plea agreement by not
recommending safety-valve relief because Rodriguez lied during her safety-valve
debrief and in her subsequent proffer. See United States v. Shrestha, 86 F.3d 935,
939 (9 th Cir. 1996). Rodriguez’s argument that enforcement of the appellate
waiver would result in a miscarriage of justice is nothing more than an attempt to
have the court consider the merits of her appeal, which the court cannot do because
she has waived her right to appeal.
DISMISSED.
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