                                                                              FILED
                           NOT FOR PUBLICATION                                  AUG 13 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-30106

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00160-EJL-1

  v.
                                                 MEMORANDUM*
JAMES ROY O’NEILL,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                            Submitted August 6, 2012**
                               Seattle, Washington

Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.

       James Roy O'Neill appeals his sentence resulting from a guilty plea to

cocaine and money laundering offenses. We grant the government's motion to

dismiss because O'Neill knowingly and voluntarily waived his right to appeal.


        *
             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).
      A waiver is enforceable if the defendant knowingly and voluntarily waives

his rights and the wording of the waiver covers the grounds raised on appeal.

United States v. Bibler, 495 F.3d 621, 623-24 (9th Cir. 2007) (citing United States

v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005)). Because O'Neill did not object

to the plea colloquy in district court, we review under the plain error standard. See

United States v. Jimenez-Dominguez, 296 F.3d 863, 866 (9th Cir. 2002) (citing

United States v. Vonn, 535 U.S. 55 (2002)). Plain error requires the defendant to

show “‘a reasonable probability that, but for the error, he would not have entered

the [guilty] plea.’” United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008)

(alteration in original) (quoting United States v. Dominguez Benitez, 542 U.S. 74,

76 (2004)).

      O'Neill claims that the district court failed to comply with Federal Rule of

Criminal Procedure 11, but he fails to argue that any alleged failure led him to

plead guilty. The district court did not discuss a special assessment, contrary to

Federal Rule of Criminal Procedure 11(b)(1)(L), but the special assessment was

discussed in the plea agreement that O’Neill acknowledges reviewing with his

lawyer. O’Neill does not show that the district court’s failure to discuss the special

assessment led to his guilty plea; in fact, the substance of his appeal does not even




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mention the special assessment. O’Neill similarly fails to argue that any of the

district court’s other variations from Rule 11 reasonably led him to plead guilty.

      O’Neill’s appeal does not fall within the plea waiver’s exceptions. The plea

agreement allows an appeal if the district court “exercised its discretion under 18

U.S.C. § 3553(a) to impose a sentence that exceeds the advisory Sentencing

Guidelines range.” O’Neill’s 180-month sentence was below the advisory

sentencing guidelines range of 188-235 months. O’Neill attempts to dispute the

calculation of the sentencing guidelines range, but the range calculation does not

fall within the plea waiver’s exceptions.

      O'Neill knowingly and voluntarily waived his right to appeal. The

government’s motion to dismiss is therefore GRANTED. Appeal DISMISSED.




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