                                                                          FILED
                           NOT FOR PUBLICATION                             DEC 12 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 13-10008

              Plaintiff - Appellee,             D.C. No. 4:08-cr-01207-DCB-
                                                BGM-1
  v.

ROBERT ARTHUR ERGONIS, AKA                      MEMORANDUM*
Robert A. Ergonis,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                       No. 13-10009

              Plaintiff - Appellee,             D.C. No. 4:08-cr-01205-DCB-
                                                LAB-1
  v.

ROBERT ARTHUR ERGONIS, AKA
Robert A. Ergonis,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                           Submitted December 10, 2014**
                              San Francisco, California

Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.

      Robert Ergonis pleaded guilty to making a false statement to law enforcement

agents and conspiracy to possess with intent to distribute marijuana. Despite a

negotiated plea agreement in which he waived the right to appeal, Ergonis challenges

his 125-month sentence, arguing that the district court erred in calculating his criminal

history category and in declining to downwardly depart. Ergonis also moves for a

remand for application of a recent amendment to the Sentencing Guidelines. We

dismiss the appeal and deny the motion without prejudice to filing an appropriate

motion in the district court.

      1. This court must dismiss an appeal when there is a valid and enforceable

waiver of the right to appeal. See United States v. Vences, 169 F.3d 611, 613 (9th Cir.

1999). Plea agreements are “contractual in nature and subject to contract-law

standards.” United States v. Sandoval-Lopez, 122 F.3d 797, 800 (9th Cir. 1997).

Whether an appellant has waived the right to appeal is a question of law reviewed de

novo. United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004).




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                           2
      2. The plea agreement plainly and unambiguously waived the right to appeal

any sentence within the Guidelines range, as determined by the district court. The

district court determined the Guidelines range to be 100 to 125 months and sentenced

Ergonis within that range. The appeal waiver thus bars this appeal. See United States

v. Nunez, 223 F.3d 956, 958-59 (9th Cir. 2000).

      3. Ergonis argues he is not bound by the waiver because the government

breached the plea agreement, but the government complied with all material terms.

Any delay in dismissing the case pending in the Eastern District of Michigan was

reasonable in light of this appeal, which sought relief from the plea agreement.

      4.   Any motion respecting the applicability of Amendment 782 to the

Guidelines should be brought in the sentencing court in the first instance. See 18

U.S.C. § 3582(c)(2).

      5. Ergonis’s request for reassignment of the case on remand is denied as moot.

      DISMISSED.




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