United States v. Carlos Fleitas

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 22, 2019
• Docket: 18-30090
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30090

Plaintiff-Appellee, D.C. No. 2:15-cr-00133-SMJ-3

v.

CARLOS MANUEL FLEITAS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Carlos Manuel Fleitas appeals from the district court’s judgment and

challenges the 30-month sentence imposed following his guilty-plea conviction for

conspiracy to commit access device fraud, in violation of 18 U.S.C. § 1029(a)(2),

(b)(2). We dismiss.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Fleitas argues that the district court erred by declining to order his sentence

to run concurrently with a sentence imposed in the Southern District of Florida for

a separate criminal conviction. The government contends that this appeal is barred

by a valid appeal waiver. We review de novo whether a defendant has waived his

right to appeal. See United States v. Bibler, 495 F.3d 621, 623 (9th Cir. 2007).

Notwithstanding the fact that the plea agreement did not limit the district court’s

discretion to impose a fully consecutive sentence, Fleitas agreed without

qualification to waive his right to appeal his sentence. Contrary to Fleitas’s

contention, the court’s alleged misapplication of the Guidelines does not render his

sentence unlawful such that the waiver is unenforceable. See id. at 624 (illegal

sentence exception to enforceability of waiver applies if sentence exceeds statutory

maximum or is unconstitutional); see also United States v. Martinez, 143 F.3d

1266, 1271 (9th Cir. 1998) (“When a plea agreement expressly waives a

defendant’s right to appeal a sentence, the waiver extends to an appeal based on an

incorrect application of the sentencing guidelines.”). Accordingly, we dismiss

pursuant to the valid appeal waiver. See United States v. Watson, 582 F.3d 974,

988 (9th Cir. 2009).

DISMISSED.

2 18-30090