                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 26 2010

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 08-30335

               Plaintiff - Appellee,             D.C. No. 4:08-CR-00051-SEH

   v.
                                                 MEMORANDUM *
 ANTHONY FRANCIS BOOK,

               Defendant - Appellant.



                     Appeal from the United States District Court
                             for the District of Montana
                      Sam E. Haddon, District Judge, Presiding

                              Submitted March 16, 2010 **


Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Anthony Francis Book appeals from the 300-month sentence imposed

following his guilty-plea conviction for conspiracy to possess methamphetamine



          *
             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).

NC/Research
with intent to distribute, in violation of 21 U.S.C. §§ 846 and 851. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

       Book contends that the district court erred by failing to treat his two prior

felony drug convictions as a single conviction for purposes of a sentence

enhancement under 21 U.S.C. § 841(b)(1)(A), and that his overall sentence is

substantively unreasonable. We decline to reach these contentions because Book

pleaded guilty pursuant to a plea agreement in which he knowingly and voluntarily

waived his right to appeal the sentence. See United States v. Bibler, 495 F.3d 621,

623-24 (9th Cir. 2007).

       Book contends that his appeal waiver is inapplicable because the district

court’s failure to treat his two prior felony drug convictions as a single conviction

resulted in a disproportionate sentence that violates the “cruel and unusual

punishment” clause of the Eighth Amendment. This contention fails. Although an

appeal waiver will not apply if the sentence violates the Constitution, see id. at

624, Book’s sentence is well below the maximum term allowed and is not “so

‘grossly out of proportion to the severity of the crime’ as to shock our sense of

justice.” See United States v. Cupa-Guillen, 34 F.3d 860, 864 (9th Cir. 1994).

       DISMISSED.




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