United States v. Hernandez-Escobar

134 F. App'x 223

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2005
• Docket: No. 04-10366
• Status: Published

Opinion

MEMORANDUM

**

Jose Manuel Hemandez-Escobar appeals the sentence imposed following his guilty plea to distribution of a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(A)(viii). Hernandez-Escobar contends that the district court erred in assessing his criminal history points in sentencing him. Hernandez-Escobar also seeks to file a supplemental brief raising claims pursuant to United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

As part of his plea agreement, Hernandez-Escobar waived his right to bring an appeal. Hernandez-Escobar does not contend that his guilty plea was involuntary or unknowing. In his supplemental brief, Hernandez-Escobar contends that the district court err in sentencing him when it applied the Sentencing Guidelines as mandatory. Hernandez-Escobar’s contention is foreclosed by United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir.2005) (rejecting a Booker challenge in a case involving a plea appellate waiver “because a change in law does not make a plea involuntary and unknowing.”)

Accordingly, we enforce the waiver of his appellate rights, and dismiss the appeal. See United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir.1990).

DISMISSED.¹

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.

1 . We grant appellant’s motion to file a supplemental brief.