                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 26 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10423

              Plaintiff - Appellee,              D.C. No. 4:11-cr-00957-CKJ-
                                                 HCE-1
  v.

ATILANO DE JESUS RODRIGUEZ,                      MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                   Argued and Submitted September 10, 2013**
                            San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and TIMLIN, 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 Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
      Atilano de Jesus Rodriguez filed this appeal from the 30-month sentence he

received pursuant to his conviction for unlawful reentry in violation of 8 U.S.C.

§ 1326 in 2011. He seeks to contest the 16-level upward adjustment imposed

because of his prior conviction for sexual battery. We conclude he has waived his

appeal rights.

      Rodriguez’s reentry conviction was entered on the basis of his guilty plea

that contained multiple ranges of sentences, depending upon the offense level that

the presentence report recommended. The plea agreement provided that Rodriguez

waived his right to appeal the conviction or any sentence that was consistent with

the agreement. When the magistrate judge accepted the plea, the magistrate judge

explained that the plea waiver meant Rodriguez agreed not to appeal, so long as the

district court imposed a sentence consistent with the level applicable to Rodriguez.

      The district court then sentenced Rodriguez to a term that was consistent

with the applicable offense level. The appeal waiver applies. Rodriguez cites two

recent memorandum dispositions where we viewed an appeal waiver as

ambiguous. United States v. Banos-Mejia, 2013 WL 4532212 (9th Cir. Aug. 28,

2013); United States v. Aguilar-Balbuena, 475 F. App’x 222 (9th Cir. Aug. 2,

2012). In each of those cases, however, there was no clarifying colloquy. Here,




                                          2
the magistrate judge explained the waiver and expressly asked Rodriguez whether

he understood he was waiving his right to appeal. There was a valid waiver.

      The appeal is DISMISSED.




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