United States v. Rodriguez

192 F. App'x 614

Opinion

MEMORANDUM

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Ildelisa Urena Rodriguez appeals from her 70-month sentence imposed after her guilty plea conviction for conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(viii) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

We reject the government’s assertion that appellant’s appeal waiver is valid and enforceable. See United States v. Pena, 314 F.3d 1152, 1154 n. 1 (9th Cir.2003) (‘We note, moreover, that the district court did not inform Pena of his appellate rights and did not verify his intent to forfeit them during the plea colloquy, as it was required to do.”).

Appellant contends that, because her prior conviction for a misdemeanor was uncounselled and she received a suspended sentence, her prior conviction should not have been counted toward her criminal history score, and, therefore, the district court should have granted a safety valve reduction. We disagree. The district court did not clearly err in finding that appellant failed to show by a preponderance of the evidence that her prior conviction was constitutionally infirm. See United, States v. Allen, 153 F.3d 1037, 1041 (9th Cir.1998); United States v. Newman, 912 F.2d 1119, 1123 (9th Cir.1990).

AFFIRMED.

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.