                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 24 2012

                                                                        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. 09-50607

               Plaintiff - Appellee,             D.C. No. 2:08-cr-01418-PSG

  v.
                                                 MEMORANDUM *
JORGE ALEJANDRO GUTIERREZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                            Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Jorge Alejandro Gutierrez appeals from the 188-month sentence imposed

following his guilty-plea conviction for possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). We have




          *
             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).
jurisdiction under 28 U.S.C. § 1291, and we affirm in part and dismiss in part.

      Gutierrez contends that his sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment because it is grossly

disproportionate to his offense. This contention lacks merit. See United States v.

Jensen, 425 F.3d 698, 708 (9th Cir. 2005) (rejecting an Eighth Amendment

disproportionality challenge to a life sentence for a defendant convicted of

possession with intent to distribute methamphetamine).

      Gutierrez further contends that his sentence is substantively unreasonable.

As Gutierrez has conceded, however, his plea agreement includes a valid appeal

waiver which precludes us from addressing this contention.

      AFFIRMED in part; DISMISSED in part.




                                          2                                    09-50607
