United States of America v. Lamar Facine

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAMAR FACINE,
Defendant - Appellant.
No. 08-30186
D.C. No. 3:07-cr-00044-TMB-3
MEMORANDUM *
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted March 4, 2010**
Seattle, Washington
Before: TASHIMA, FISHER and BERZON, Circuit Judges.
Lamar Facine appeals from his conviction on two counts of distribution of a
controlled substance in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and (b)(1)(C).
Facine pled guilty subject to a plea agreement. On appeal, he contends that the
district court abused its discretion by denying his motion to withdraw his guilty
FILED
MAR 09 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

2
plea, contending that his plea was not knowingly and voluntarily made. We
dismiss the appeal for lack of jurisdiction.
This court lacks jurisdiction over Facine’s appeal because Facine’s plea
agreement waived entirely his right to appeal his conviction. The agreement
permitted him to challenge the voluntariness of his plea and ineffective assistance
of counsel, but only on collateral review. The appeal waiver was knowingly and
voluntarily made. See United States v. Jeronimo, 398 F.3d 1149, 1153-57 (9th Cir.
2005). Moreover, Facine bases this argument on a claim of ineffective assistance
of counsel, and the record is inadequate either to establish that Facine’s plea was
involuntary or to permit appellate review of the effectiveness issue by this court.
Facine’s involuntariness of his guilty plea claim and ineffective assistance claim
may be raised on collateral review, at which point an appropriate evidentiary
record can be assembled.
APPEAL DISMISSED.

-- 2 of 2 --