Opinion
Nos. 09-30302, 09-30310.
Argued and Submitted February 8, 2011.
Filed February 28, 2011.
Helen J. Brunner, Esquire, Assistant U.S., Michael Symington Morgan, Assistant U.S., Robert G. Kondrat, Esquire, James Lord, Assistant U.S., Office of the U.S. Attorney, Seattle, WA, for Plaintiff-Appellee.
Terrence Kellogg, Counsel, Law Office of Terrence Kellogg, Seattle, WA, for Nicholas J. Alexander, Nicholas Alexander Kamerling.
Nicholas J. Alexander, Nicholas Alexander Kamerling, Seattle, WA, pro se.
Anna Marie Tolin, Law Office of Anna M. Tolin, Seattle, WA, for Beverlee P. Kamerling.
Appeal from the United States District Court for the Western District of Washington, Richard A. Jones, District Judge, Presiding. D.C. Nos. 2:07-cr-00410-RAJ-5, 2:07-cr-00410-RAJ-1.
Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Cir. R. 36-3.
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 bar, cf. Food 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.