United States of America v. RICHARD GREG POMARES, AKA Dick A. Bahey, AKA Greg Baye, AKA Dick Bayeh, AKA Greg…

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 Charles R. Wolle, Senior United States District Judge***
for the Southern District of Iowa, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD GREG POMARES, AKA Dick
A. Bahey, AKA Greg Baye, AKA Dick
Bayeh, AKA Greg Costa, AKA Richard
Costa, AKA Greg Pamales, AKA Greg
Pameres, AKA Greg M. Paul, AKA Dick
Pomares, AKA Greg Pomares, AKA Rich
Pomers, AKA Dick Romares,
Defendant - Appellant.
No. 08-10389
D.C. No. 1:06-cr-00167-LJO-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted October 4, 2010**
San Francisco, California
Before: BERZON and CALLAHAN, Circuit Judges, and WOLLE, Senior District
Judge.***
FILED
NOV 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

The parties are familiar with the facts and we repeat them here only as1
necessary to explain our decision.
2
Richard Greg Pomares (“Pomares”) appeals his sentence of 63 months for
one count of credit card fraud and aiding and abetting, in violation of 18 U.S.C. §§
1029 (a)(3) and 2, and one count of harboring or concealing a person from arrest,
in violation of 18 U.S.C. §§ 1071 and 3147. We have jurisdiction to hear this1
appeal. United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en
banc). We find that Pomares entered into a valid plea agreement in which he
knowingly and voluntarily waived his right to appeal. Accordingly, we dismiss
this appeal.
We have held that “a defendant’s waiver of his appellate rights is
enforceable if (1) the language of the waiver encompasses his right to appeal on the
grounds raised, and (2) the waiver is knowingly and voluntarily made.” United
States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009). We examine “the
circumstances surrounding the signing and entry of the plea agreement to
determine whether the defendant agreed to its terms knowingly and voluntarily,”
United States v. Cope, 527 F.3d 944, 949 (9th Cir. 2007), and “will generally
enforce the plain language of a plea agreement if it is clear and unambiguous on its
face.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). “The

-- 2 of 4 --

3
preclusive effect we give to the plea agreement may depend on the nature of the
plea . . . .” Jacobo Castillo, 496 F.3d at 957 (emphasis original).
The record shows that Pomares knowingly and voluntarily waived his right
to appeal and that there is no good reason not to enforce the waiver. Pomares was
represented by counsel when he entered into the plea agreement and waived his
right to appeal. The district court conducted a thorough Rule 11 plea colloquy, and
Pomares clearly stated that he knowingly and voluntarily entered into the plea
agreement and waived his right to appeal. We find that “the waiver was knowingly
and voluntarily made given the circumstances surrounding the agreement.” United
States v. Watson, 582 F.3d 974, 978 (9th Cir. 2009).
Pomares’ contentions that the district court abused its discretion in denying
his motion to withdraw his guilty plea and that his waiver therefore should not bar
him from appealing that decision are not well-taken. The record shows that
Pomares understood the charges in the Superseding Information when he entered
into his plea agreement and waived his right to appeal. His subsequent motion to
withdraw at sentencing, made when the district court indicated that it would
sentence him according to the charges in the Superseding Information, was based
on an implausible construction of the plea agreement that was contrary to that
accepted by Pomares in his Rule 11 colloquy. Pomares has not presented any

-- 3 of 4 --

4
evidence indicating that he did not knowingly and voluntarily enter into the plea
agreement; he does not contend that he was misled by his counsel or the
prosecutor, or assert any other “fair and just reason” for withdrawing his plea. Fed.
R. Crim. P. 11(d)(2)(B); United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir.
2009). Accordingly, we will enforce the valid appeal waiver and dismiss this
appeal. Watson, 582 F.3d at 988.
DISMISSED.

-- 4 of 4 --