                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 28 2011

                                                                        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. 09-30302

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00410-RAJ-5

  v.
                                                 MEMORANDUM *
NICHOLAS J. ALEXANDER, Nicholas
Alexander Kamerling,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-30310

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00410-RAJ-1

  v.

BEVERLEE P. KAMERLING, also
known as Beverlee Claydon also known as
Beverley Claydon also known as Beverly
Claydon also known as Beverley Clayton
also known as B Patricia Claydon,

              Defendant - Appellant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                      for the Western District of Washington
                    Richard A. Jones, District Judge, Presiding

                      Argued and Submitted February 8, 2011
                               Seattle, Washington

Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.

      Alexander and Kamerling appeal their sentences for their role in a “pump

and dump” securities fraud conspiracy. By entering into their respective plea

agreements, however, Alexander and Kamerling knowingly and voluntarily waived

their rights to appeal. See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir.

2011). The plea agreements’ waiver of “any right conferred by Title 18, United

States Code, Section 3742,” which was conditioned only on the court’s imposition

of “a sentence that is within the Sentencing Guidelines range that is determined by

the Court at the time of sentencing,” constitutes an unambiguous waiver of

Alexander and Kamerling’s right to appeal the sentencing court’s Guidelines

calculations. See 18 U.S.C. § 3742(a)(2).

      The government did not breach the plea agreement by advocating for

additional offense level adjustments. Alexander and Kamerling’s plea agreements

do not state that the parties are barred from advocating for such adjustments, see

United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000), and the absence of a

provision expressly authorizing such advocacy does not implicitly create such a

                                          2
bar, cf. Foad Consulting Group, Inc. v. Azzalino, 270 F.3d 821, 829–31 (9th Cir.

2001). Moreover, Alexander and Kamerling’s subsequent behavior, including

Alexander’s own advocacy for an additional offense level adjustment, confirms

that they did not understand the agreements as prohibiting the government from

advocating for additional offense level adjustments. See Laborers Health &

Welfare Trust Fund v. Kaufman & Broad, 707 F.2d 412, 418 (9th Cir. 1983).

      Finally, the district court’s ambiguous statement regarding acceptance of

responsibility at Kamerling’s change-of-plea hearing was not a guarantee that

Kamerling would receive an offense level reduction at sentencing. See United

States v. Buchanan, 59 F.3d 914, 917–18 (9th Cir. 1995). Thus, this statement

does not undermine the validity of Kamerling’s appeal waiver.

      Because Alexander and Kamerling remain bound by their appeal waivers,

we decline to exercise jurisdiction over this consolidated appeal. See Harris, 628

F.3d at 1205.

      DISMISSED.




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