United States v. Shaun Roe

FILED
NOT FOR PUBLICATION MAR 31 2010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. 09-30038
Plaintiff - Appellee, D.C. No. 3:08-cr-00002-TMB
v.
MEMORANDUM *
SHAUN ROE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Shaun Roe appeals from the 168-month sentence imposed following his
guilty-plea conviction for conspiring to distribute and to possess with intent to
distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). We have
*
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).
DAT/Research
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The Government contends that we lack jurisdiction over this appeal because
Roe waived his right to appeal his conviction and sentence. This contention lacks
merit. See United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en
banc) (enforceable appeal waiver does not deprive this court of jurisdiction).
Roe contends that although he waived his right to appeal in a written plea
agreement, the waiver is not enforceable because the district court did not advise
him at his change of plea hearing that his statements, under oath, could be used in
subsequent perjury proceedings. This contention lacks merit because the
government did not initiate a perjury action against Roe. See Fed. R. Crim. P.
11(b)(1)(B); see also United States v. Vonn, 294 F.3d 1093, 1094 (9th Cir.
2002)(order).
Thus, Roe’s contention that the district court erred in imposing a four-level
leadership enhancement pursuant to U.S.S.G. § 3B1.1(a) is precluded by the appeal
waiver. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007).
AFFIRMED.
DAT/Research 2 09-30038