                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 13 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10091

               Plaintiff - Appellee,             D.C. No. 5:10-cr-00588-EJD

  v.
                                                 MEMORANDUM*
JOSEPH J. VIOLA, a.k.a. Giuseppe Viola,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward J. Davila, District Judge, Presiding

                             Submitted March 10, 2014**

Before:        PREGERSON, LEAVY, and MURGUIA, Circuit Judges.

       Joseph J. Viola appeals pro se from the district court’s judgment and

challenges his guilty-plea conviction and 105-month sentence for mail fraud, in

violation of 18 U.S.C. § 1341. We dismiss.



          *
             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 government argues that this appeal is barred by the appeal waiver in the

parties’ plea agreement. Viola contends that the waiver is unenforceable, asserting

that the government breached the plea agreement, primarily by recommending a

total offense level that was higher than that indicated in the plea agreement. We

review de novo whether a defendant has waived his right to appeal. See United

States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).

      The record reflects that the government’s computation of the total offense

level was consistent with the calculations in the plea agreement. Viola’s remaining

allegations of breach are unavailing because they relate to actions taken by the

Probation Office, which was not a party to the plea agreement. Because the appeal

waiver applies and is enforceable, we dismiss. See id. at 988.

      All pending motions are denied as moot.

      DISMISSED.




                                          2                                    12-10091
