United States v. Lee Roy Hannon, Jr.

60 F.3d 835, 1995 U.S. App. LEXIS 25528, 1995 WL 392154

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 3, 1995
• Docket: 94-10493
• Status: Published

Opinion

60 F.3d 835
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Lee Roy HANNON, Jr., Defendant-Appellant.

No. 94-10493.

United States Court of Appeals, Ninth Circuit.

Submitted June 26, 1995.*
July 3, 1995.

Before: O'SCANNLAIN, LEAVY, and HAWKINS, Circuit Judges.

MEMORANDUM**

Lee Roy Hannon, Jr. appeals his sentence under the Sentencing Guidelines imposed following his guilty plea to eighteen counts of submitting a false claim upon the United States and aiding and abetting, in violation of 18 U.S.C. Secs. 287 and 2. Hannon contends that the district court erred in departing upward on the ground that Hannon's criminal history score did not adequately reflect the seriousness of his past criminal conduct.

The government argues that this appeal should be dismissed because Hannon waived his right to appeal in his plea agreement. We agree. We reject Hannon's contention that he did not waive his right to appeal the district court's upward departure for under-representation of criminal history where the plea agreement provided that the government would not recommend an upward departure on that basis. In the plea agreement, Hannon expressly waived "the right to appeal the sentence in this case, by pleading guilty pursuant to this Plea Agreement ---." The agreement stated further that it was his "knowing and voluntary intention to" waive his right to appeal. The agreement also stated that Hannon "understands that none of the foregoing recommendations is binding upon the Court, which retains the power to sentence the defendant to the maximum allowable penalty." Hannon does not dispute that the government fully complied with the terms of the plea agreement. In these circumstances, we lack jurisdiction to review the sentence. See United States v. Bolinger, 940 F.2d 478, 479-480 (9th Cir. 1991).

DISMISSED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3