United States of America v. Mario Alberto Herrera-Perez

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO ALBERTO HERRERA-PEREZ,
Defendant - Appellant.
No. 10-30192
D.C. No. 3:09-cr-05601-BHS
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted December 19, 2011**
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Mario Alberto Herrera-Perez appeals from the 120-month sentence imposed
following his guilty-plea conviction for possession with intent to distribute heroin,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). We have jurisdiction under
28 U.S.C. § 1291, and we dismiss.
FILED
DEC 21 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-30192 2
Herrera-Perez pleaded guilty pursuant to a written agreement that included
an appeal waiver. He contends that his appeal waiver was not knowing and
voluntary due to the ineffective assistance of counsel. As a general rule, we do not
review challenges to the effectiveness of defense counsel on direct appeal unless
(1) the record on appeal is sufficiently developed to permit determination of the
issue, or (2) the legal representation is so inadequate that it obviously denies a
defendant his Sixth Amendment right to counsel. See United States v. Jeronimo,
398 F.3d 1149, 1155-56 (9th Cir. 2005), overruled on other grounds by United
States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). Neither
exception applies to this case. Based on the record before this court on direct
appeal, we conclude that Herrera-Perez’s appeal waiver, which waived his ability
to appeal a sentence that was imposed at the statutory mandatory minimum, was
voluntary and enforceable. See id. at 1156.
Herrera-Perez’s motion for remand to enforce the plea agreement is denied.
There was no breach of the plea agreement because the provision Herrera-Perez
seeks to enforce benefits the government, therefore the government may waive it.
See Jacobo Castillo, 496 F.3d at 956-57.
DISMISSED.

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