                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 14 2015

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

UNITED STATES OF AMERICA,                        No. 14-30031

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00015-SEH-1

 v.
                                                 MEMORANDUM*
DACOTA ROBERT ROGERS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                    Sam E. Haddon, District Judge, Presiding

                             Submitted May 4, 2015**
                               Seattle, Washington

Before: KLEINFELD, GOULD, and CHRISTEN, Circuit Judges.

      Dacota Rogers appeals a 224-month sentence imposed following his guilty

plea to distribution of fentanyl, in violation of 21 U.S.C. § 841(a). Rogers and the

government entered into a plea agreement whereby Rogers agreed to plead guilty


        *
             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).
to the fentanyl distribution charge, which carried a maximum 20-year sentence,

and waive his right to appeal. In exchange, the government agreed to dismiss a

separate charge of distribution of fentanyl resulting in death pursuant to 21 U.S.C.

§§ 841(a) & 841(b)(1)(C), which carried a mandatory minimum 20-year sentence,

and not to file an information under 21 U.S.C. § 851 based on the defendant’s prior

drug conviction, which would have subjected Rogers to mandatory life

imprisonment. The plea agreement did not contain an agreed-upon sentencing

range. Because we conclude the appeal waiver is enforceable, we dismiss this

appeal for lack of jurisdiction.

1.    An appeal waiver is enforceable “if appellant knowingly and voluntarily

waives [his] rights and the language of the waiver covers the grounds raised on

appeal.” United States v. Bibler, 495 F.3d 621, 623–24 (9th Cir. 2007). Here,

Rogers does not dispute that his waiver was knowing or voluntary. Nor does he

dispute that the terms of the agreement cover the grounds raised on appeal.

      An appeal waiver will not apply, however, “if: 1) a defendant’s guilty plea

fail[s] to comply with Fed. R. Crim. P. 11; 2) the sentencing judge informs a

defendant that she retains the right to appeal; 3) the sentence does not comport with

the terms of the plea agreement; or 4) the sentence violates the law.” Id. at 624.

Rogers contends that all of these circumstances, except for the second one, are


                                          2
present here. His arguments fail. First, Rule 11(c)(5) does not apply because it

only concerns rejected plea agreements and the district court accepted the parties’

plea agreement. Second, Rogers’s sentence comports with the terms of the plea

agreement because the district court faithfully applied the terms of the deal. The

fact that the plea agreement does not contain a sentence cap does not affect the

conclusion that the sentence imposed was faithful to the deal. Rogers accepted the

risk of proceeding without a sentence cap in exchange for avoiding much more

serious penalties. Third, Rogers’s sentence does not violate the law because it was

within the maximum allowed by statute. United States v. Mendez-Gonzalez, 697

F.3d 1101, 1103 (9th Cir. 2012).

2.    Because we dismiss the appeal for lack of jurisdiction, we do not address

Rogers’s arguments on the merits.

      DISMISSED.




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