United States v. 2007-07-19 | 06-30375 | USA VBIBLER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 06-30375
Plaintiff-Appellee, D.C. No.
v. CR-05-00174-2-
SEHBROOKE MARIE BIBLER, a.k.a.
Brooke Bibler, ORDER
Defendant-Appellant. AMENDING
OPINION AND
 DENYING
PETITION FOR
REHEARING AND
PETITION FOR
REHEARING
EN BANC AND
AMENDED
OPINION

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
March 9, 2007—Seattle, Washington
Filed May 4, 2007
Amended May 18, 2007
Second Amendment July 19, 2007
Before: Betty B. Fletcher, Diarmuid F. O’Scannlain, and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge B. Fletcher
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COUNSEL
E. June Lord, Great Falls, Montana, for the defendant-
appellant.
Joseph E. Thaggard, Assistant United States Attorney, Great
Falls, Montana, for the plaintiff-appellee.
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ORDER
The opinion filed May 4, 2007, and amended May 18,
2007, is amended as follows:
1. United States v. Bibler, 486 F.3d 557, 558 (9th Cir.
2007), replace the sentence “Therefore, we dismiss this
appeal.” with “Therefore, we affirm the district court.”
2. At page 559, delete the sentence: “Thus, this court
lacks jurisdiction to consider her appeal unless one of the ‘few
well-established exceptions to appeal waivers’ applies. Id. at
1153 n. 2.”
3. At page 560, replace the sentence “For the reasons
articulated herein, the instant appeal is: DISMISSED.” with
“For the reasons articulated herein, the decision of the district
court is: AFFIRMED.”
The panel has voted to deny the petition for panel rehear-
ing. Judge O’Scannlain votes to deny the petition for rehear-
ing en banc and Judges B. Fletcher and Tashima so
recommend.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehear-
ing en banc are denied. No further petitions will be enter-
tained.
OPINION
B. FLETCHER, Circuit Judge:
Brooke Bibler appeals her 80-month sentence, arguing that
the district court erred in failing to apply the safety valve
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exception, 18 U.S.C. § 3553(f), when sentencing her. Even
assuming that the district court’s failure to apply § 3553(f)
was error, appellant waived her right to appeal the sentence
imposed by the district court. Therefore, we affirm the district
court.
I.
Appellant was arrested after police entered her house pur-
suant to a search warrant and found her in possession of
methamphetamine. In return for the government’s promise to
seek a downward departure under U.S.S.G. § 5K1.1, appellant
pled guilty to possession with intent to distribute more than
50 grams of methamphetamine, agreed to testify against her
boyfriend at his trial,1 and waived the right to appeal her sen-
tence.2 Appellant’s statute of conviction — 21 U.S.C.
§ 841(b)(1)(A)(viii) — established a minimum penalty of ten
years in prison, but the Pre-Sentence Report (“PSR”), follow-
ing the advisory guideline range, recommended a 41-51
month sentence.
According to the PSR, appellant was eligible for the safety
valve exception to her statutory minimum. See 18 U.S.C.
§ 3553(f); U.S.S.G. § 5C1.2(a). But at sentencing, the district
court held that the safety valve was not applicable post-
Booker, although the court held that 18 U.S.C. § 3553(e) did
apply. Section 3553(e) provides that “[u]pon motion of the
1Appellant’s boyfriend was arrested at the same time and was charged
with a number of gun and drug-related crimes.
2Bibler’s plea agreement stated “that the Court . . . may sentence the
Defendant to a sentence anywhere within the Guideline range, and may
depart upward or downward after it has, on the record, indicated what fac-
tors not contemplated by the Guidelines justify the upward or downward
departure.” The agreement further stated that “[i]n consideration for the
government’s motion pursuant to U.S.S.G. § 5K1.1 for a downward depar-
ture from the sentencing guidelines, if such a motion is made and the
Court accepts the plea agreement, the Defendant hereby waives all right
to appeal the sentence imposed by the Court.”
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Government, the court shall have the authority to impose a
sentence below a level established by statute as a minimum
sentence so as to reflect a defendant’s substantial assistance
in the investigation or prosecution of another person who has
committed the offense.” Id. Applying § 3553(e), the district
court sentenced appellant to 80 months in prison, a term that
exceeded the PSR’s recommendation and the advisory guide-
line range of 41-51 months but fell well below the statutory
minimum sentence of 120 months. Appellant now challenges
the district court’s decision, arguing that her appellate waiver
should not preclude her from challenging the district court’s
decision because the district court erred in failing to apply the
safety valve statute.
II.
[1] Whether appellant has waived her right to appeal is
reviewed de novo. United States v. Jeronimo, 398 F.3d 1149,
1153 (9th Cir. 2005). The waiver is enforceable if appellant
knowingly and voluntarily waives her rights and the language
of the waiver covers the grounds raised on appeal. Id. Here,
appellant does not dispute that her waiver was knowing or
voluntary. Nor can she dispute that the terms of the agreement
— which “waive[ ] all right to appeal the sentence imposed
by the Court” — encompass the alleged error.
An appeal waiver will not apply if: 1) a defendant’s guilty
plea failed to comply with Fed. R. Crim. P. 11; 2) the sentenc-
ing judge informs a defendant that she retains the right to
appeal; 3) the sentence does not comport with the terms of the
plea agreement; or 4) the sentence violates the law. See
United States v. Portillo-Cano, 192 F.3d 1246, 1252 (9th Cir.
1999) (Rule 11); United States v. Buchanan, 59 F.3d 914,
917-18 (9th Cir. 1995) (judge informed defendant that he
retained his right to appeal); United States v. Bolinger, 940
F.2d 478, 479-80 (9th Cir. 1991) (sentence not in accord with
plea agreement); United States v. Gordon, 393 F.3d 1044,
1050 (9th Cir. 2004) (illegal sentence).
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[2] The only exception that arguably applies to the instant
case is the exception for illegal sentences. A sentence is ille-
gal if it exceeds the permissible statutory penalty for the crime
or violates the Constitution. United States v. Fowler, 794 F.2d
1446, 1449 (9th Cir. 1986).3 Neither ground is applicable
here. Appellant does not allege a constitutional violation and
the sentence imposed by the district court fell below the statu-
tory minimum. Even assuming that the district court erred in
failing to apply the safety valve statute, which this court has
held to be mandatory post-Booker, see United States v.
Cardenas-Juarez, 469 F.3d 1331 (9th Cir. 2006), this error
does not render appellant’s sentence illegal because § 3553(f)
does not lower the permissible statutory penalty for the crime.
All that the safety valve requires is that the district court sen-
tence defendants without regard for the statutory minimum —
something that the district court did in this very case by grant-
ing appellant a downward departure under § 5K1.1 for sub-
stantial assistance.4 Insofar as the district court sentenced
appellant to a term of years beneath the maximum allowed by
statute, the sentence is not “illegal” and cannot excuse the
waiver of appeal.
[3] If defendants intend to preserve a larger subset of their
appellate rights, this must be bargained for in the plea agree-
ment. For instance, defendants could reserve the right to
appeal in case of plain error, or in case the district court
issued a sentence that exceeded a particular period of time.
But absent such a bargained-for term, or the applicability of
3Fowler actually cites an additional ground under which a sentence may
be illegal: namely, that the sentence “is not authorized by the judgment of
conviction.” 794 F.2d at 1449. However, Pinedo v. United States, 347
F.2d 142 (9th Cir. 1965), the case cited by Fowler for this proposition,
defines “not authorized by the judgment of conviction” as a sentence that
exceeds the permissible statutory penalty. Id. at 148. Thus, this category
of sentence collapses into the first category cited above.
4Of course, the district court premised its below-statute sentence on
§ 3553(e) and not § 3553(f) but this does not change the permissible sen-
tencing range.
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an exception, a knowing and voluntary waiver of appellate
rights will preclude substantive appellate review in this court.
For the reasons articulated herein, the decision of the district
court is:
AFFIRMED.
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