United States of America v. Gary Colombo

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).
The Honorable William H. Stafford, Jr., Senior District Judge for the**
U.S. District Court for Northern Florida, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY COLOMBO,
Defendant - Appellant.
No. 10-10585
D.C. No. 2:07-cr-00080-CRW-
PAL-3
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Charles R. Wolle, Senior District Judge, Presiding
Submitted December 9, 2011**
San Francisco, California
Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District
Judge.***
FILED
DEC 20 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
Gary Colombo pleaded guilty to participating in a massive wire fraud in
exchange for considerable favorable concessions by the government.
Notwithstanding his plea agreement’s waiver of appeal clause, he appeals on two
related grounds, neither of which we conclude is valid.
1) Colombo attacks the validity of his plea including his appeal waiver on
the ground that the agreement lacked a valid factual basis. We disagree. In his
signed and counseled agreement, he unmistakably admitted participating in the
alleged conspiracy with the requisite state of mind. When asked by the district
court if he was pleading guilty because he was guilty, he said “I’d guess I’d have to
say yes.” Not only is this record devoid of plain error, but his plea agreement and
his plea allocution taken together demonstrate a clear factual basis for the plea to
which he admitted.
2) Thus, his attempt to vitiate his waiver of the right to appeal fails. See
United States v. Michlin, 34 F.3d 896 (9th Cir. 1994); United States v. Baramdyka,
95 F.3d 840, 843 (9th Cir. 1996) (valid appeal waivers serve an “important
function in the judicial administrative process”).
APPEAL DISMISSED.

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