                                                                              FILED
                            NOT FOR PUBLICATION                               AUG 22 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10282

               Plaintiff-Appellee,               D.C. No. 2:13-cr-00326-MCE

 v.
                                                 MEMORANDUM*
ROBERT VARGAS,

               Defendant-Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                            Submitted August 16, 2016**

Before:        O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.

      Robert Vargas appeals from the district court’s judgment and challenges the

180-month sentence imposed following his guilty-plea conviction for conspiracy to

distribute and to possess with intent to distribute methamphetamine, in violation of

21 U.S.C. §§ 841(a)(1) and 846; possession with intent to distribute MDMA, in

          *
             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).
violation of 21 U.S.C. § 841(a)(1); and possession of a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. § 924(c). We dismiss.

      Vargas contends that his sentence is substantively unreasonable in light of an

alleged overstatement to his criminal history and the disparity between his sentence

and that of his codefendant. The government argues that this appeal should be

dismissed based on an appeal waiver contained in the parties’ plea agreement.

Reviewing de novo, see United States v. Lightfoot, 626 F.3d 1092, 1094 (9th Cir.

2010), we dismiss. Vargas gave up the right to appeal his sentence as long as it did

not exceed “the top of the applicable guideline range.” Whether the applicable

guideline range is the 195-228 month range calculated by the court at sentencing,

or the 181-211 month range calculated in the plea agreement and that Vargas now

suggests the court should have used, the appeal waiver bars Vargas’s appeal of his

180-month sentence.

      DISMISSED.




                                         2                                   15-10282
