United States v. McAninch

109 F. App'x 885

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2004
• Docket: No. 03-30433; D.C. No. CR-01-00445-RSL
• Status: Published

Opinion

MEMORANDUM

**

Donald Bruce McAninch appeals his 41-month sentence, imposed after his guilty plea to mail fraud, in violation of 18 U.S.C. § 1341, and mailing threatening communications, in violation of 18 U.S.C. § 876. We dismiss based on the valid appeal waiver.

The government contends that McAninch’s appeal waiver precludes this appeal. An appeal waiver is valid if it is knowingly and voluntarily made. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996). In determining whether the plea agreement was entered into knowingly and voluntarily, we look at the express language of the waiver and the circumstances surrounding the signing and entry of the plea agreement, including compliance with Fed.R.Crim.P. 11. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir.2000). McAninch does not allege that the appeal waiver, or the plea agreement in general, is invalid, nor is there any indication of this in the record. Because McAninch knowingly and voluntarily waived his right to appeal, the waiver bars all challenges to his conviction and sentence, and we must dismiss the appeal. See Nguyen, 235 F.3d at 1182.

Because McAninch made a valid waiver of his right to appeal his sentence, we decline to address McAninch’s argument that the district court erred in imposing a fine in lieu of restitution. See United States v. Joyce, 357 F.3d 921, 924 (9th Cir.2004) (holding that where a defendant waives the right, as conferred by 18 U.S.C. § 3742, to appeal a sentence, that waiver includes the right to appeal all the forms of punishment listed in that statute, including fines).

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.