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NOT FOR PUBLICATION.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 District of Arizona, Paul G. Rosenblatt, 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.
Anita McClellan appeals her 200-month sentence imposed after her guilty plea conviction for second-degree murder in violation of 18 U.S.C. §§ 1111 and 1153. We lack jurisdiction and dismiss. See United States v. Vences, 169 F.3d 611, 612 (9th Cir.1999).
McClellan contends her waiver of the right to appeal did not foreclose an appeal contending that the district court's upward departure was unreasonable. We review de novo the waiver of a statutory right to appeal, United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996), and conclude that McClellan's contention is unpersuasive. McClellan's plea agreement contained a waiver of her right to appeal "if the sentence imposed is consistent with the terms of this agreement." The agreement specifically memorialized McClellan's understanding that the agreement was not binding on the court, the right of both parties to make any recommendations to the court, and the court's authority to depart upward from the calculated guideline range. The sentence McClellan received, which reflected an upward departure for the unusual brutality of her crime, was consistent with the plea agreement.
To the extent that McClellan also contends the waiver was not valid because the plea colloquy required by Federal Rule of Criminal Procedure 11 was inadequate, her contention fails because the district court addressed the waiver of appeal in the colloquy.
DISMISSED.