United States v. Nicholas Alexander

FILED
NOT FOR PUBLICATION FEB 28 2011
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. 09-30302
Plaintiff - Appellee, D.C. No. 2:07-cr-00410-RAJ-5
v.
MEMORANDUM *
NICHOLAS J. ALEXANDER, Nicholas
Alexander Kamerling,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-30310
Plaintiff - Appellee, D.C. No. 2:07-cr-00410-RAJ-1
v.
BEVERLEE P. KAMERLING, also
known as Beverlee Claydon also known as
Beverley Claydon also known as Beverly
Claydon also known as Beverley Clayton
also known as B Patricia Claydon,
Defendant - Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted February 8, 2011
Seattle, Washington
Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.
Alexander and Kamerling appeal their sentences for their role in a “pump
and dump” securities fraud conspiracy. By entering into their respective plea
agreements, however, Alexander and Kamerling knowingly and voluntarily waived
their rights to appeal. See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir.
2011). The plea agreements’ waiver of “any right conferred by Title 18, United
States Code, Section 3742,” which was conditioned only on the court’s imposition
of “a sentence that is within the Sentencing Guidelines range that is determined by
the Court at the time of sentencing,” constitutes an unambiguous waiver of
Alexander and Kamerling’s right to appeal the sentencing court’s Guidelines
calculations. See 18 U.S.C. § 3742(a)(2).
The government did not breach the plea agreement by advocating for
additional offense level adjustments. Alexander and Kamerling’s plea agreements
do not state that the parties are barred from advocating for such adjustments, see
United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000), and the absence of a
provision expressly authorizing such advocacy does not implicitly create such a
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bar, cf. Foad Consulting Group, Inc. v. Azzalino, 270 F.3d 821, 829–31 (9th Cir.
2001). Moreover, Alexander and Kamerling’s subsequent behavior, including
Alexander’s own advocacy for an additional offense level adjustment, confirms
that they did not understand the agreements as prohibiting the government from
advocating for additional offense level adjustments. See Laborers Health &
Welfare Trust Fund v. Kaufman & Broad, 707 F.2d 412, 418 (9th Cir. 1983).
Finally, the district court’s ambiguous statement regarding acceptance of
responsibility at Kamerling’s change-of-plea hearing was not a guarantee that
Kamerling would receive an offense level reduction at sentencing. See United
States v. Buchanan, 59 F.3d 914, 917–18 (9th Cir. 1995). Thus, this statement
does not undermine the validity of Kamerling’s appeal waiver.
Because Alexander and Kamerling remain bound by their appeal waivers,
we decline to exercise jurisdiction over this consolidated appeal. See Harris, 628
F.3d at 1205.
DISMISSED.
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