United States of America v. Dacota Robert Rogers

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DACOTA ROBERT ROGERS,
Defendant - Appellant.
No. 14-30031
D.C. No. 2:13-cr-00015-SEH-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted May 4, 2015 **
Seattle, Washington
Before: KLEINFELD, GOULD, and CHRISTEN, Circuit Judges.
Dacota Rogers appeals a 224-month sentence imposed following his guilty
plea to distribution of fentanyl, in violation of 21 U.S.C. § 841(a). Rogers and the
government entered into a plea agreement whereby Rogers agreed to plead guilty
FILED
MAY 14 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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to the fentanyl distribution charge, which carried a maximum 20-year sentence,
and waive his right to appeal. In exchange, the government agreed to dismiss a
separate charge of distribution of fentanyl resulting in death pursuant to 21 U.S.C.
§§ 841(a) & 841(b)(1)(C), which carried a mandatory minimum 20-year sentence,
and not to file an information under 21 U.S.C. § 851 based on the defendant’s prior
drug conviction, which would have subjected Rogers to mandatory life
imprisonment. The plea agreement did not contain an agreed-upon sentencing
range. Because we conclude the appeal waiver is enforceable, we dismiss this
appeal for lack of jurisdiction.
1. An appeal waiver is enforceable “if appellant knowingly and voluntarily
waives [his] rights and the language of the waiver covers the grounds raised on
appeal.” United States v. Bibler, 495 F.3d 621, 623–24 (9th Cir. 2007). Here,
Rogers does not dispute that his waiver was knowing or voluntary. Nor does he
dispute that the terms of the agreement cover the grounds raised on appeal.
An appeal waiver will not apply, however, “if: 1) a defendant’s guilty plea
fail[s] to comply with Fed. R. Crim. P. 11; 2) the sentencing 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.” Id. at 624.
Rogers contends that all of these circumstances, except for the second one, are
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present here. His arguments fail. First, Rule 11(c)(5) does not apply because it
only concerns rejected plea agreements and the district court accepted the parties’
plea agreement. Second, Rogers’s sentence comports with the terms of the plea
agreement because the district court faithfully applied the terms of the deal. The
fact that the plea agreement does not contain a sentence cap does not affect the
conclusion that the sentence imposed was faithful to the deal. Rogers accepted the
risk of proceeding without a sentence cap in exchange for avoiding much more
serious penalties. Third, Rogers’s sentence does not violate the law because it was
within the maximum allowed by statute. United States v. Mendez-Gonzalez, 697
F.3d 1101, 1103 (9th Cir. 2012).
2. Because we dismiss the appeal for lack of jurisdiction, we do not address
Rogers’s arguments on the merits.
DISMISSED.
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