                                                                             FILED
                             NOT FOR PUBLICATION                              MAR 31 2010

                                                                          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. 09-30038

               Plaintiff - Appellee,              D.C. No. 3:08-cr-00002-TMB

   v.
                                                  MEMORANDUM *
 SHAUN ROE,

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Alaska
                    Timothy M. Burgess, District Judge, Presiding

                              Submitted March 16, 2010 **

Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Shaun Roe appeals from the 168-month sentence imposed following his

guilty-plea conviction for conspiring to distribute and to possess with intent to

distribute heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). 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).

DAT/Research
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

       The Government contends that we lack jurisdiction over this appeal because

Roe waived his right to appeal his conviction and sentence. This contention lacks

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

banc) (enforceable appeal waiver does not deprive this court of jurisdiction).

       Roe contends that although he waived his right to appeal in a written plea

agreement, the waiver is not enforceable because the district court did not advise

him at his change of plea hearing that his statements, under oath, could be used in

subsequent perjury proceedings. This contention lacks merit because the

government did not initiate a perjury action against Roe. See Fed. R. Crim. P.

11(b)(1)(B); see also United States v. Vonn, 294 F.3d 1093, 1094 (9th Cir.

2002)(order).

       Thus, Roe’s contention that the district court erred in imposing a four-level

leadership enhancement pursuant to U.S.S.G. § 3B1.1(a) is precluded by the appeal

waiver. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007).

       AFFIRMED.




DAT/Research                               2                                     09-30038
