                                                                            FILED
                            NOT FOR PUBLICATION                               DEC 1 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-50622

               Plaintiff - Appellee,              D.C. No. 3:13-cr-02943-LAB

  v.
                                                  MEMORANDUM*
HERIBERTO ESQUIVEL,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Heriberto Esquivel appeals from the district court’s judgment and challenges

the 27-month sentence imposed following his guilty-plea conviction for

transportation of illegal aliens and aiding and abetting, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(ii) and (a)(1)(A)(v)(II). 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).
      Esquivel contends that the district court improperly relied at sentencing on

facts disclosed during a cooperation debriefing, and that the sentence is

substantively unreasonable. The government contends that this appeal should be

dismissed based on the appeal waiver in the parties’ plea agreement. We review de

novo whether an appellant has waived his right to appeal. See United States v.

Joyce, 357 F.3d 921, 922 (9th Cir. 2004).

      As relevant here, Esquivel waived any right to appeal his sentence, except to

challenge the applicability of the substantial-risk enhancement under U.S.S.G.

§ 2L1.1(b)(6), and to challenge a custodial sentence “above the high end of the

guideline range recommended by the Government pursuant to this agreement at the

time of sentencing.” The district court did not impose the substantial-risk

enhancement, and Esquivel received a sentence within the Guidelines range

recommended by the government at sentencing. Accordingly, neither of the appeal

waiver’s relevant exceptions applies, and the waiver is enforceable. Contrary to

Esquivel’s argument, the fact that he did not anticipate this application of the

waiver does not render the waiver unenforceable. See United States v. Johnson, 67

F.3d 200, 202-03 (9th Cir. 1995).

      DISMISSED.




                                            2                                      13-50622
