                                                                            FILED
                            NOT FOR PUBLICATION                             NOV 08 2016

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10183

               Plaintiff - Appellee,             D.C. No. 4:13-cr-00338-JSW

 v.
                                                 MEMORANDUM*
DION MARLIN NICHOLS,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                              Submitted May 24, 2016**

Before:        REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.

      Dion Marlin Nichols appeals from the district court’s judgment and

challenges the 108-month sentence imposed following his guilty-plea conviction

for possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

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).
      Nichols contends that his sentence is illegal because the district court

violated his rights to due process and effective assistance of counsel at sentencing

by relying, without notice, on evidence outside the record to discredit a defense

expert. The government argues that this appeal should be dismissed based on an

appeal waiver contained in the parties’ plea agreement. We review de novo

whether to enforce an appeal waiver. See United States v. Watson, 582 F.3d 974,

981 (9th Cir. 2009). Although Nichols is correct that the district court mentioned

its experience with Dr. Flinton in a prior case, that reference does not constitute

clear error. The district court rejected Dr. Flinton’s conclusions due to the actual

evidence of Nichols’s admitted history. The district court stated that it had

reviewed Dr. Flinton’s report, and found that because Dr. Flinton’s opinion “defies

credulity and defies logic,” it would not be accepted by the court. ER 286, 306-07.

Because the district court acted within its discretion in evaluating Dr. Flinton’s

conclusions in this case, we find that the mention of the court’s past experience

with Dr. Flinton was not reversible error. See United States v. Yi, 704 F.3d 800,

807 (9th Cir. 2013). Accordingly, Nichols’s sentence is not illegal, and we dismiss

this appeal in light of the valid appeal waiver. See Watson, 582 F.3d at 988.

      DISMISSED.




                                           2                                     15-10183
