                               NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                                   FILED
                               FOR THE NINTH CIRCUIT                                     MAY 10 2010

                                                                                     MOLLY C. DWYER, CLERK
                                                                                      U.S. COURT OF APPEALS

 UNITED STATES OF AMERICA,                             No. 08-50370

               Plaintiff - Appellee,                   D.C. No. 2:04-cr-00028-GPS-1

   v.
                                                       REDACTED MEMORANDUM *
 ERIC MCFADDEN,

               Defendant - Appellant.


                     Appeal from the United States District Court
                         for the Central District of California
                     George P. Schiavelli, District Judge, Presiding

                           Argued and Submitted April 8, 2010
                                  Pasadena, California

Before: SILVERMAN and GRABER, Circuit Judges, and SCULLIN, ** District
Judge.

        Defendant appeals the 240-month sentence that the district court imposed

following his guilty plea to distribution of cocaine base (crack cocaine) in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). We have jurisdiction pursuant to 28


         *
               An unredacted Memorandum has been filed contemporaneously. This disposition
is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
        **
              The Honorable Frederick J. Scullin, Jr., Senior United States District Judge for
the Northern District of New York, sitting by designation.
U.S.C. §§ 1291 and 1294. For the following reasons, we dismiss Defendant's

appeal.

      Defendant knowingly and voluntarily entered into a plea agreement

containing a waiver of appellate rights. "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. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). Even

when a waiver is knowing and voluntary, if the government breaches the plea

agreement, the defendant is released from his promise not to appeal. See United

States v. Gonzalez, 16 F.3d 985, 990 (9th Cir. 1993).

      In the present matter, the waiver provided that "Defendant gives up the right

to appeal any sentence imposed by the Court, and the manner in which the

sentence is determined, provided that the sentence is within the statutory maximum

specified in paragraph 4 [life imprisonment] and is constitutional." The waiver is

clear and unambiguous. Defendant gave up the right to appeal any sentence below

the statutory maximum – life imprisonment – so long as the sentence imposed was

constitutional. The district court applied the relevant factors and sentenced

Defendant to a term of incarceration twenty-two months below the recommended

guideline range. Therefore, by the terms of the plea agreement, Defendant is


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foreclosed from appealing his sentence unless the Government breached the plea

agreement.

      [REDACTED]

      Finally, Defendant seeks direct review of his ineffective assistance of

counsel claim on the theory that he was deprived of representation by counsel at a

critical stage of the proceedings. [REDACTED]

      "Ordinarily, a plea of ineffective assistance of counsel should be brought in

a collateral proceeding under 28 U.S.C. § 2255 because the appellate record often

lacks a sufficient evidentiary basis as to 'what counsel did, why it was done, and

what, if any, prejudice resulted.'" United States v. Quintero-Barraza, 78 F.3d 1344,

1347 (9th Cir. 1995) (quoting United States v. Molina, 934 F.2d 1440, 1446 (9th

Cir. 1991)). Accordingly, we will consider ineffective assistance claims on direct

review only "in the unusual cases (1) where the record on appeal is sufficiently

developed to permit determination of the issues, or (2) where the legal

representation is so inadequate that it obviously denies a defendant his Sixth

Amendment right to counsel." Jeronimo, 398 F.3d at 1156 (citing United States v.

Daychild, 357 F.3d 1082, 1095 (9th Cir. 2004)).

      Neither exception applies here. [REDACTED] Moreover, nothing in the

record supports a conclusion that defense counsel's legal representation was so


                                         -3-
inadequate that it obviously deprived Defendant of his Sixth Amendment rights.

      APPEAL DISMISSED.




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