United States of America v. Peter Malivao

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PETER MALIVAO,
Defendant-Appellant.
No. 15-10449
D.C. No. 1:13-cr-00885-LEK
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Peter Malivao appeals from the district court’s judgment and challenges the
156-month sentence imposed following his guilty-plea conviction for conspiracy to
distribute and possess with intent to distribute methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. We have jurisdiction under 28 U.S.C.
FILED
JAN 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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§ 1291. We dismiss.
Malivao contends that the district court failed to resolve his factual
objections to the presentence report, in violation of Federal Rule of Criminal
Procedure 32, and that he received ineffective assistance of counsel at sentencing.
The government argues that the appeal should be dismissed based on the appeal
waiver contained in the parties’ plea agreement. Reviewing de novo, see United
States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009), we dismiss. Contrary to
Malivao’s contention, the appeal waiver is supported by adequate consideration.
Further, the record on appeal is not sufficiently developed to evaluate Malivao’s
claims of ineffective assistance of counsel. See United States v. Rahman, 642 F.3d
1257, 1259-60 (9th Cir. 2011) (declining to consider a claim of ineffective
assistance of counsel on direct appeal raised in response to the government’s
assertion of an appeal waiver).
DISMISSED.
15-10449 2

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