United States v. Saleh

167 F. App'x 656

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 16, 2006
• Docket: No. 04-50253
• Status: Published

Opinion

MEMORANDUM

**

Hamdi Saleh appeals from the 96-month sentence imposed following his guilty-plea conviction for use of a communication facility to facilitate a felony narcotics offense, in violation of 21 U.S.C. § 843(b). We have jurisdiction pursuant to 28 U.S.C. § 1291.

As a preliminary matter, we decline to enforce the appeal waiver contained in Saleh’s written plea agreement because, at the change of plea hearing, the district court advised Saleh that he could appeal his sentence if it was contrary to law. See United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir.1995) (“[Wjhere there is a direct conflict between a trial judge’s unambiguous oral pronouncement of sentence and the written judgment, the oral pronouncement must control, even if erroneous.”).

Citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Saleh contends that the district court ran afoul of the Sixth Amendment when it applied a two-level enhancement based on its conclusion that Saleh had obstructed justice. Because Saleh’s ultimate sentence did not exceed that which could have been imposed based solely on the facts he admitted in the plea agreement, there was no constitutional error. See id. at 756.

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 Ninth Circuit Rule 36-3.