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NOT FOR PUBLICATION.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)
Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding.
Before RYMER, KLEINFELD and FISHER, 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.
Antonio Benavidez appeals his 120-month sentence following his guilty plea conviction for distribution of more than 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). We lack jurisdiction, and dismiss.
Benavidez contends that the district court failed to rule on his eligibility for a safety valve departure from the statutory minimum sentence. His plea agreement,
At no time did Benavidez request the district court to rule on his eligibility for the safety valve. The defendant's letter pointing to his undisputed lack of prior convictions did not raise the safety valve issue. It is the defendant's burden to show his eligibility for the downward departure, United States v. Ajugwo, 82 F.3d 925, 930 (9th Cir.1996), and he has yet to assert that he truthfully provided the information to the government required by 18 U.S.C. § 3553(f)(5).
Page 458.
however, waived the right to appeal a sentence within the statutory maximum, as long as the court did not depart upward. The conditions of the waiver were met, and we will enforce it. United States v. Nguyen, 235 F.3d 1179, 1182-84 (9th Cir.2000) (recognizing enforceability of knowing and voluntary waiver of appeal rights).
Benavidez's claim of ineffective assistance of counsel may be raised by way of a section 2255 motion. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) (discussing plea agreement waiver not extending to collateral attack alleging ineffective assistance of counsel).
DISMISSED.