                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 02 2010

                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 08-10389

              Plaintiff - Appellee,              D.C. No. 1:06-cr-00167-LJO-1

  v.
                                                 MEMORANDUM *
RICHARD GREG POMARES, AKA Dick
A. Bahey, AKA Greg Baye, AKA Dick
Bayeh, AKA Greg Costa, AKA Richard
Costa, AKA Greg Pamales, AKA Greg
Pameres, AKA Greg M. Paul, AKA Dick
Pomares, AKA Greg Pomares, AKA Rich
Pomers, AKA Dick Romares,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                            Submitted October 4, 2010 **
                             San Francisco, California

Before: BERZON and CALLAHAN, Circuit Judges, and WOLLE, Senior District
Judge.***




        *
             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).
        ***
             The Honorable Charles R. Wolle, Senior United States District Judge
for the Southern District of Iowa, sitting by designation.
      Richard Greg Pomares (“Pomares”) appeals his sentence of 63 months for

one count of credit card fraud and aiding and abetting, in violation of 18 U.S.C. §§

1029 (a)(3) and 2, and one count of harboring or concealing a person from arrest,

in violation of 18 U.S.C. §§ 1071 and 3147.1 We have jurisdiction to hear this

appeal. United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en

banc). We find that Pomares entered into a valid plea agreement in which he

knowingly and voluntarily waived his right to appeal. Accordingly, we dismiss

this appeal.

      We have held that “a defendant’s waiver of his appellate rights is

enforceable if (1) the language of the waiver encompasses his right to appeal on the

grounds raised, and (2) the waiver is knowingly and voluntarily made.” United

States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009). We examine “the

circumstances surrounding the signing and entry of the plea agreement to

determine whether the defendant agreed to its terms knowingly and voluntarily,”

United States v. Cope, 527 F.3d 944, 949 (9th Cir. 2007), and “will generally

enforce the plain language of a plea agreement if it is clear and unambiguous on its

face.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). “The



      1
             The parties are familiar with the facts and we repeat them here only as
necessary to explain our decision.

                                          2
preclusive effect we give to the plea agreement may depend on the nature of the

plea . . . .” Jacobo Castillo, 496 F.3d at 957 (emphasis original).

      The record shows that Pomares knowingly and voluntarily waived his right

to appeal and that there is no good reason not to enforce the waiver. Pomares was

represented by counsel when he entered into the plea agreement and waived his

right to appeal. The district court conducted a thorough Rule 11 plea colloquy, and

Pomares clearly stated that he knowingly and voluntarily entered into the plea

agreement and waived his right to appeal. We find that “the waiver was knowingly

and voluntarily made given the circumstances surrounding the agreement.” United

States v. Watson, 582 F.3d 974, 978 (9th Cir. 2009).

      Pomares’ contentions that the district court abused its discretion in denying

his motion to withdraw his guilty plea and that his waiver therefore should not bar

him from appealing that decision are not well-taken. The record shows that

Pomares understood the charges in the Superseding Information when he entered

into his plea agreement and waived his right to appeal. His subsequent motion to

withdraw at sentencing, made when the district court indicated that it would

sentence him according to the charges in the Superseding Information, was based

on an implausible construction of the plea agreement that was contrary to that

accepted by Pomares in his Rule 11 colloquy. Pomares has not presented any


                                          3
evidence indicating that he did not knowingly and voluntarily enter into the plea

agreement; he does not contend that he was misled by his counsel or the

prosecutor, or assert any other “fair and just reason” for withdrawing his plea. Fed.

R. Crim. P. 11(d)(2)(B); United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir.

2009). Accordingly, we will enforce the valid appeal waiver and dismiss this

appeal. Watson, 582 F.3d at 988.

      DISMISSED.




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