                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 19 2010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. 10-30120

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00010-LRS

  v.
                                                 MEMORANDUM *
PEDRO MORALES-CARDENAS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Eastern District of Washington
                      Lonny R. Suko, Chief Judge, Presiding

                           Submitted November 16, 2010 **

Before:        TASHIMA, BERZON, and CLIFTON, Circuit Judges.

       Pedro Morales-Cardenas appeals from the district court’s order denying his

motion, under Fed. R. Crim. P. 35(a), to correct the judgment. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

       The government contends that the appeal waiver in Morales-Cardenas’ plea

          *
             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).
agreement precludes our reaching the merits of Morales-Cardenas’ claim on

appeal. Because Morales-Cardenas challenges the sentence imposed in the written

judgment as unconstitutional, the appeal waiver does not apply, and we may reach

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

omitted).

      Morales-Cardenas contends that the district court erred when it declined to

correct the written judgment to reflect the sentence of nine months imprisonment

pronounced at the sentencing hearing. This contention fails because the court’s

oral pronouncement of sentence was ambiguous. Although an unambiguous oral

pronouncement controls a directly conflicting written judgment, see United States

v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974) (per curiam), when “the

oral pronouncement is ambiguous or open to reasonable interpretation . . . , it

cannot possibly ‘control.’” United States v. O’Brien, 789 F.2d 1344, 1347 (9th

Cir. 1986).

      AFFIRMED.




                                          2                                       10-30120
