UNITED STATES of America, Plaintiff-Appellee, v. John Robert LITTLEFIELD, Defendant-Appellant

105 F.3d 527, 97 Cal. Daily Op. Serv. 611, 97 Daily Journal DAR 954, 1997 U.S. App. LEXIS 1275, 1997 WL 29422

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 1997
• Docket: 96-50060
• Status: Published

Opinions

OPINION

PER CURIAM.

After pleading guilty to distributing methamphetamine, John Littlefield was sentenced to 120 months in prison. He appeals his sentence and conviction.

Littlefield’s guilty plea was entered pursuant to Fed.R.Crim.P. 11(e)(1)(C). An 11(e)(1)(C) agreement specifies the sentence to be imposed if the district judge accepts the plea. It also limits the defendant’s right to appeal. By statute,

[i]n the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure ... a defendant may not file a notice of appeal [of an otherwise -final sentence] unless the sentence imposed is greater than the sentence set forth in such agreement....

18 U.S.C. § 8742(c)(1). An exception is made if the sentence violates the law or is based on “an incorrect application of the sentencing guidelines.” Id. § 3742(a).

Littlefield was given the minimum sentence permitted by the statute of conviction, 21 U.S.C. § 841. Such a sentence is neither illegal, see United, States v. Baramdyka, 95 F.3d 840, 843-44 (9th Cir.1996)(“[B]ecause the sentence imposed was well within the statutory maximum, it is not illegal and therefore, that exception is unavailable.”), nor Guidelines-based. Therefore, section 3742 bars appeal of Littlefield’s sentence.

Littlefield also appeals his conviction. His notice of appeal indicates his intention to challenge his “[s]entence only.” ER at 145. Were we to overlook this lacuna — as we sometimes do where the government has had ample opportunity to respond to defendant’s claims, see United States v. Yee Sodn Shin, 953 F.2d 559, 560 (9th Cir.1992) — we would nonetheless reject Littlefield’s claims.

First, Littlefield argues his indictment was defective because the requisite facts were not presented to the grand jury. But he waived his right to indictment when he agreed to proceed by information, a choice he reiterated at his Rulé 11 hearing.

Second, Littlefield claims his conviction was barred by the statute of limitations; this claim is foreclosed by his plea. See United States v. Akmakjian, 647 F.2d 12, 14 (9th Cir.)(per curiam), cert. denied, 454 U.S. 964, 102 S.Ct. 505, 70 L.Ed.2d 380 (1981). Although Littlefield, unlike Akmakjian, did not waive his limitations claim expressly, “conscious waiver is [not] necessary with respect to each potential defense relinquished by a plea of guilty.” United States v. Broce, 488 U.S. 563, 573, 109 S.Ct. 757, 764, 102 L.Ed.2d 927 (1989).

AFFIRMED.