                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 12 2010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. 09-15461

               Plaintiff - Appellee,             D.C. Nos.    2:07-cv-01609-LRH
                                                              2:02-CR-00186-LRH
  v.

JESUS ESTRADA,                                   MEMORANDUM *

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Jesus Estrada appeals from the district court’s order denying his motion for

relief under 28 U.S.C. § 2255. We have jurisdiction under to 28 U.S.C. § 2253,

and we affirm.




          *
             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 contends that Estrada’s waiver of his right to appeal his

sentence in a plea agreement bars this appeal. We disagree, because the plea

agreement “did not expressly waive the right to bring a § 2255 motion.” See

United States v. Pruitt, 32 F.3d 431, 432-33 (9th. Cir 1994); United States v.

Nunez, 223 F.3d 956, 959 (9th Cir. 2000).

      Estrada contends that his sentence violates the Due Process Clause because

there was no evidentiary support for the district court’s imposition of a two-level

role enhancement to his base offense level under U.S.S.G. § 3B1.1(c). We affirm

because the record reflects that Estrada exercised authority over, and was

responsible for organizing, a coconspirator. See United States v. Maldonado, 215

F.3d 1046, 1050 (9th Cir. 2000) (“A single incident of persons acting under a

defendant’s direction is sufficient evidence to support a two-level role

enhancement.”).

      Estrada also contends that it was impermissible for the district court to

impose the enhancement where the government opposed it, and he objected to the

Presentence Report (“PSR”) on the grounds that he was not a leader under the

Guidelines. Those contentions are unpersuasive. See Maldonado, 215 F.3d at

1051 (citing United States v. Milton, 153 F.3d 891, 897 (8th Cir. 1998) for the

proposition that “where government and defendant both opposed PSR


                                          2                                       09-15461
recommendation, the court did not err by relying on facts presented in the PSR to

establish a role enhancement under U.S.S.G. § 3B1.1.”); United States v. Riley, 335

F.3d 919, 931 (holding that, absent actual evidence contradicting a PSR, “an

uncontradicted PSR alone is sufficient to uphold a district court’s findings”).

      Estrada also contends that the district court relied on unreliable evidence.

The record belies this contention.

      AFFIRMED.




                                          3                                       09-15461
