United States v. 2020-04-10 | 18-30085 | USA V. CLAYTON BUSKIRK | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLAYTON EUGENE BUSKIRK, AKA
Clayton Buskirk,

Defendant-Appellant.

No. 18-30085

D.C. No.
2:16-cr-00136-SMJ-3

MEMORANDUM
*

Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding

Submitted March 5, 2020
**

Seattle, Washington

Before: IKUTA and R. NELSON, Circuit Judges, and OLIVER,
***
District Judge.

Clayton Eugene Buskirk appeals his conviction and 121-month sentence,
contending that his guilty plea was not knowingly and voluntarily entered. He asserts

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
FILED

APR 10 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 18-30085
that his plea agreement was illusory because he was misled by the government into
believing that he qualified for safety valve. He also maintains that the government
violated the terms of the plea agreement when it failed to recommend that he receive
offense level reductions for acceptance of responsibility and safety valve, as required
by the plea agreement, and argued specific offense characteristics in direct
contravention of the plea agreement. Further, he argues that the district court erred
when it denied him safety valve and acceptance of responsibility reductions. The
government argues that Buskirk knowingly and voluntarily waived his right to this
appeal when he entered a guilty plea pursuant to his plea agreement. We agree with
the government, and find that Buskirk’s waiver of his appellate rights is valid and
enforceable. Accordingly, we dismiss this appeal.
We review de novo whether an appellant has waived his right to appeal,
United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004), and whether a defendant’s
guilty plea was voluntary, United States v. Forrester, 616 F.3d 929, 934 (9th Cir.
2010). Generally, “[a] defendant’s waiver of his appellate rights is enforceable if the
language of the waiver encompasses his right to appeal on the grounds raised, and if
the waiver was knowingly and voluntarily made.” Joyce, 357 F.3d at 922 (citing
United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996)). However, a waiver
will not be enforced if the government breaches the plea agreement, releasing the
defendant from his appellate waiver. See United States v. Gonzalez, 16 F.3d 985,

3 18-30085
990 (9th Cir. 1993). The Court reviews de novo a defendant’s claim that the
government breached its plea agreement. United States v. Whitney, 673 F.3d 965,
970 (9th Cir. 2012). However, when a defendant forfeits his claim by failing to make
a timely objection, the Court reviews the defendant’s claim for plain error. Id.
(internal citations omitted). Because Buskirk raises his claim of breach for the first
time on appeal, we review it for plain error.
Here, there is no dispute regarding the fact that the broad language of
Buskirk’s appellate waiver would preclude this appeal. Thus, the Court need only
address whether Buskirk’s guilty plea was knowingly and voluntarily made. An
appellate waiver is knowingly and voluntarily made if the guilty plea as a whole was
knowing and voluntary. See United States v. Jeronimo, 398 F.3d 1149, 1154 (9th
Cir. 2005). A guilty plea is involuntary if it is induced by threats or
misrepresentation, including unfulfilled or unfulfillable promises. See United States
v. Kaczynski, 239 F.3d 1108, 1114 (9th Cir. 2001). In determining whether a
defendant’s waiver is knowing and voluntary, the Court looks “to the circumstances
surrounding the signing and entry of the plea agreement to determine whether the
defendant agreed to its terms knowingly and voluntarily.” Baramdyka, 95 F.3d at
843. In determining whether the government breached the plea agreement, the Court
looks to “what was reasonably understood by the defendant when he entered his plea

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of guilty.” United States v. Kamer, 781 F.2d 1380, 1387 (9th Cir. 1986) (internal
citation and quotation marks omitted)).
The record reflects that Buskirk knowingly and voluntarily entered his plea of
guilty. After thorough questioning during the Rule 11 colloquy, Buskirk, under oath,
confirmed that he understood the terms of the plea agreement, including the
appellate waiver, and affirmed that he was entering his guilty plea freely, knowingly,
and voluntarily.
In addition, the record reflects that neither the government nor the terms of
the plea agreement misled Buskirk into believing that he would actually receive a
safety valve reduction. Further, contrary to Buskirk’s assertion, the government did
not breach the plea agreement because: the plea agreement did not require the
government to recommend that he receive a safety valve reduction; the government
fulfilled its promise to recommend that he receive a reduction for acceptance of
responsibility; and the government did not argue specific offense characteristics to
the district court, as he maintains. Moreover, Buskirk’s plea agreement was not
“illusory” because Buskirk might have qualified for a safety valve reduction had he
provided the government with truthful and complete information before sentencing.
Accordingly, because Buskirk’s guilty plea was knowingly and voluntarily
made and the government did not breach the plea agreement, his appellate waiver is
valid and enforceable.

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Therefore, we dismiss this appeal without reaching the merits of Buskirk’s
remaining arguments.
DISMISSED.