United States v. Garnica-Tinoco

115 F. App'x 353

Opinion

MEMORANDUM

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Aquilino Garniea-Tinoco appeals his guilty-plea conviction and 67-month sentence imposed for being a deported alien found in the United States in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we dismiss.

Garnica-Tinoeo contends that the written waiver of his right to appeal was rendered invalid by the district court’s failure to adhere to the requirements of Rule 11 of the Federal Rules of Criminal Procedure with regard to informing him of the appeal waiver. We disagree. While the district court did in fact fail to explain the terms of the waiver, see Fed.R.Crim.P. ll(b)(l)(N) (2002), this omission does not rise to the level of plain error in this case. See United States v. DeSantiago-Martinez, 38 F.3d 394, 395 (9th Cir.1992) (stating that “a Rule 11 colloquy on the waiver of the right to appeal is not a prerequisite to a finding that the waiver is valid; rather, a finding that the waiver is knowing and voluntary is sufficient”); cf. United States v. Arellano-Gallegos, 387 F.3d 794, 796-98 (9th Cir.2004) (holding that enforcement of appeal waiver would seriously affect fairness, integrity and reputation of the proceedings where there was wholesale failure to mention appeal waiver until sentencing and record did not reveal whether defendant understood the right to appeal his sentence, apart from his conviction). Garnica-Tinoco raises no other challenge to the validity of his plea or his waiver of the right to appeal. We therefore dismiss.

DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.