                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 12 2011

                                                                        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. 10-30309

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00031-JDS-1

  v.
                                                 MEMORANDUM *
HARVEST DAWN WHITE,

              Defendant - Appellant.



                   Appeal from the United States District Court
                           for the District of Montana
                Jack D. Shanstrom, Senior District Judge, Presiding

                            Submitted August 2, 2011 **
                               Seattle, Washington

Before: SCHROEDER and M. SMITH, Circuit Judges, and FOGEL, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th 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).
        ***
            The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
      Harvest Dawn White appeals the sentence imposed following his guilty plea

to negligent vehicular assault in violation of 18 U.S.C. § 1152 and Montana Code

Annotated § 45-5-205(1) and (3). He argues the district court erred in determining

that the “aggravated assault” guideline, U.S.S.G. § 2A2.2, provided the most

analogous offense to the charged crime. We have jurisdiction under 28 U.S.C.

§ 1291. “We review de novo whether a defendant has waived his right to appeal

by entering into a plea agreement and the validity of such a waiver.” United States

v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011) (citation omitted).

      “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.” Id. (citation, alteration, and

internal quotation marks omitted). As part of the plea agreement, White agreed to

waive “any and all right to directly appeal the sentence.” This waiver

unambiguously encompasses the district court’s determination as to which

guideline was the most analogous. See United States v. Carty, 520 F.3d 984, 991

(9th Cir. 2008) (en banc) (observing that the calculation of the applicable

Guidelines range is the first step in all sentencing proceedings); see also United

States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (defendant’s agreement to

“‘waive all right to appeal the sentence’” encompassed the court’s alleged failure


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to apply the safety valve exception) (alteration omitted); United States v.

Littlejohn, 224 F.3d 960, 971 (9th Cir. 2000) (defendant’s waiver of his right to

appeal his sentence encompassed the district court’s alleged failure to satisfy the

mandate of 18 U.S.C. § 3553(c)). The district court also informed White of the

rights he was giving up, including the right to appeal, and White indicated that he

understood the waiver. This is sufficient to establish that the waiver was both

knowing and voluntary, see Harris, 628 F.3d at 1206, and was his decision to

plead rather than go to trial. See Fed. R. Crim. P. 11. Moreover, the agreement

informed White that both parties “reserve all right, without condition, to make any

appropriate sentencing recommendation.”

      Contrary to White’s argument, he was not denied the benefit of the bargain

of the plea agreement, because the government made several concessions in the

agreement (a 3-point reduction and dismissing the original indictment), which

benefitted White, who was represented by counsel at all times. His belated

contention that the plea agreement was a contract of adhesion is without merit.

      Appeal DISMISSED.




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