                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 26 2013

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50534

               Plaintiff - Appellee,             D.C. No. 8:09-cr-00060-JVS

  v.
                                                 MEMORANDUM*
CARL LARUE GODFREY, a.k.a. Carl
Godfrey, a.k.a. Carl Laurue Godfrey,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                           Submitted November 19, 2013**

Before:        CANBY, TROTT and THOMAS, Circuit Judges.

       Carl Larue Godfrey appeals from district court’s judgment and challenges

the 70-month sentence imposed following his guilty-plea conviction for aiding and

abetting mail fraud, in violation of 18 U.S.C. §§ 2 and 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).
      Godfrey contends that the district court procedurally erred at sentencing by

failing to hold a hearing on a disputed issue regarding the calculation of his

criminal history category. The government argues that the appeal is barred by a

valid appeal waiver. 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).

      Godfrey contends that the appeal waiver does not apply because the district

court failed to calculate properly his criminal history and the government breached

the agreement because it failed to recommend a sentence at the bottom of the

applicable Guidelines range. The plain language of the appeal waiver

unambiguously encompasses the district court’s determination of Godfrey’s

criminal history category. See United States v. Harris, 628 F.3d 1203, 1206-07

(9th Cir. 2011). Further, the government did not breach the plea agreement

because it recommended a sentence at the bottom of the correctly calculated

Guidelines range. Accordingly, we dismiss this appeal in light of the valid appeal

waiver. See id. at 988.

      DISMISSED.




                                           2                                     11-50534
