Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
David A. Pimsner, Office of the U.S. Attorney, Phoenix, AZ, for Plaintiff-Appellee.
Michele R. Moretti, Lake Butler, FL, for Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona, Mary H. Murguia, District Judge, Presiding. D.C. No. CR-02-01093-MHM.
Before: KLEINFELD, TASHIMA and THOMAS, Circuit Judges.
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.
Jose Manuel Hernandez-Escobar appeals the sentence imposed following his
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guilty plea to distribution of a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii). Hernandez-Escobar contends that the district court erred in assessing his criminal history points in sentencing him. Hernandez-Escobar also seeks to file a supplemental brief raising claims pursuant to United States v. Booker, --- U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
As part of his plea agreement, Hernandez-Escobar waived his right to bring an appeal. Hernandez-Escobar does not contend that his guilty plea was involuntary or unknowing. In his supplemental brief, Hernandez-Escobar contends that the district court err in sentencing him when it applied the Sentencing Guidelines as mandatory. Hernandez-Escobar's contention is foreclosed by United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir.2005) (rejecting a Booker challenge in a case involving a plea appellate waiver "because a change in law does not make a plea involuntary and unknowing.")
Accordingly, we enforce the waiver of his appellate rights, and dismiss the appeal. See United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir.1990).
We grant appellant's motion to file a supplemental brief.