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United States v. Davis

filed*fn* : June 21, 1991.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ELVIS DAVIS, DEFENDANT-APPELLANT



Appeal from the United States District Court for the District of Arizona; Roger G. Strand, District Judge, Presiding; D.C. No. CR-89-00106-RGS.

Beezer, Wiggins and Fernandez, Circuit Judges.

MEMORANDUM

Elvis Davis appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines), following his conviction on a guilty plea for aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153 and 2241(c). Although he waived his right to appeal, Davis claims that the district court erred by failing to reduce his base offense level two points for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. We decline to exercise jurisdiction to review this claim and we dismiss the appeal.

A voluntary waiver of his right to appeal does not render his plea agreement unenforceable.*fn1 United States v. Navarro-Botello, 912 F.2d 318, 321-322 (9th Cir. 1990) (noting in dictum an exception where the "sentence imposed is not in accordance with the negotiated agreement").

Here, the government agreed to recommend a sentence at the lower end of the Guidelines range if the district court granted Davis a downward adjustment for acceptance of responsibility, which would have resulted in a range of 188 to 235 months. The parties agreed that the court was not bound by the government's recommendation, but that if the court imposed a sentence different from the one the government recommended, Davis could withdraw his guilty plea. Finally, Davis waived his right to appeal "any and all motions, defenses, . . . and objections which [he] has asserted or could assert to th[e] prosecution and to the court's entry of judgment" (CR 53 at 4 (Plea Agreement)).

Prior to sentencing, the district court determined that Davis had used a knife in connection with the assault, and thus added 4 points to his base offense level pursuant to U.S.S.G. § 2A3.1(b)(1). The district court also found that Davis had not accepted responsibility. Although this resulted in a sentencing range of 235-293 months, Davis elected to proceed with sentencing rather than withdraw his plea.*fn2 The district court sentenced him to 264 months' imprisonment, in the middle of the appropriate guidelines range.

Davis was sentenced in strict accordance with his plea agreement. He "waived his right [to appeal the sentence] for the purpose of obtaining certain concessions from the Government and he may not now ignore his part of the bargain." Navarro-Bottello, 912 F.2d at 322. Therefore, we decline to review the claim he now raises and we dismiss the appeal.

DISMISSE ...


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