                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 09 2011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. 09-35104

              Plaintiff - Appellee,              D.C. Nos.    4:07-cv-00088-SEH
                                                              4:05-cr-00155-SEH-1
  v.

DALE ALLEN DAVIDSON,                             MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                             Submitted March 7, 2011 **
                                 Portland, Oregon

Before: THOMAS, GRABER, and TALLMAN, Circuit Judges.

       Dale Allen Davidson appeals the district court’s denial of his motion to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. On appeal, he

argues that his sentence for violating 21 U.S.C. § 841(a)(1) (possession of

methamphetamine with intent to distribute) should be vacated and corrected and

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
that his consecutive five-year sentence for violating 18 U.S.C. § 924(c) (possession

of a firearm during a drug trafficking offense) was illegally imposed.1 We have

jurisdiction under 28 U.S.C. § 1291, and we dismiss Davidson’s appeal.

      The parties are familiar with the facts of the case so we do not repeat them

here. In his plea agreement, Davidson specifically waived his right to appeal his

sentence or to collaterally attack his sentence pursuant to § 2255 except to the

extent that he might “alleg[e] that he received ineffective assistance of counsel.” 2



      1
         Before the district court, Davidson argued that his sentence was
“improperly enhanced” and that “he received ineffective assistance of counsel at
sentencing.” On appeal, Davidson has abandoned his ineffective assistance claim.
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not
raised by a party in its opening brief are deemed waived.”).
      2
          Specifically, Davidson agreed to the following:

      17. Waiver of Appeal of the Sentence – Substantial Assistance motion
             The Defendant acknowledges that 18 U.S.C. § 3742 affords him
      the right to appeal the sentence imposed in this case. In consideration
      for the government’s motion pursuant to U.S.S.G. § 5K1.1 for a
      downward departure from the sentencing guidelines, if such a motion
      is made and the Court accepts the plea agreement, the Defendant
      hereby waives all right to appeal the sentence imposed by the Court.
             The Defendant also agrees to waive his right to collaterally
      attack the judgment or sentence pursuant to 28 U.S.C. § 2255. This
      waiver does not prohibit his right to pursue or maintain such an
      action, arising from facts not known or reasonably capable of being
      known at the time of his entry of guilty plea, alleging that he received
      ineffective assistance of counsel.


                                           2
His challenges thus concern sentencing issues he plainly relinquished his right to

appeal. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005) (“[W]e

will generally enforce the plain language of a plea agreement if it is clear and

unambiguous on its face.”).

      The fact that he now believes he can achieve a better bargain is inapposite.

See United States v. Navarro-Botello, 912 F.2d 318, 320 (9th Cir. 1990)

(“Whatever appellate issues might have been available to Navarro-Botello were

speculative compared to the certainty derived from the negotiated plea with a set

sentence parameter. He knew he was giving up possible appeals, even if he did not

know exactly what the nature of those appeals might be. In exchange, he gained a

set sentence. Just because the choice looks different to Navarro-Botello with the

benefit of hindsight, does not make the choice involuntary.”); id. at 322 (“[T]he

most important benefit of plea bargaining[] is the finality that results.”).

      Because the United States has raised a timely objection, and Davidson has

not raised a credible argument as to why the agreement he freely entered into

should not be enforced, we see no cause to consider the merits of his appeal.3

United States v. Jacobo Castillo, 496 F.3d 947, 954 (9th Cir. 2007) (en banc)


      3
        We note that, absent the waiver, Abbott v. United States, 131 S. Ct. 18, 23
(2010), would squarely foreclose Davidson’s claim that his consecutive five-year
sentence was illegally imposed.

                                            3
(“Ordinarily, if an appellant does not [expressly reserve his right to appeal an

issue] and still raises such issues on appeal, the government objects and the court

dismisses the appeal.”); Jeronimo, 398 F.3d at 1152–53.

      DISMISSED.




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