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United States Court of Appeals, Ninth CircuitDec 16, 2010
406 Fed. Appx. 187 (9th Cir. 2010)

No. 09-50488.

Submitted December 9, 2010.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed December 16, 2010.

Timothy C. Perry, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.

Frederick Carroll, Law Offices of Frederick M. Carroll, San Diego, CA, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California, Janis L. Sammartino, District Judge, Presiding. D.C. No. 3:08-cr-03763-JLS.

Before: PREGERSON and CLIFTON, Circuit Judges, and HOLLAND, Senior District Judge.

The Honorable H. Russel Holland, Senior United States District Judge for the District of Alaska, sitting by designation.


This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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 (9th 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.