                                                                            FILED
                             NOT FOR PUBLICATION                             OCT 03 2016

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    15-50139

                Plaintiff-Appellee,              D.C. No. 3:14-cr-01753-BAS

 v.
                                                 MEMORANDUM*
LEANDRO FELIPE REGALADO,

                Defendant-Appellant.


                     Appeal from the United States District Court
                        for the Southern District of California
                     Cynthia A. Bashant, District Judge, Presiding

                           Submitted September 27, 2016**

Before:         TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

      Leandro Felipe Regalado appeals from the district court’s judgment and

challenges his guilty-plea conviction for importation of cocaine, in violation of 21

U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291, and we

dismiss.

           *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
           **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Regalado contends that the district court erred by not sua sponte offering

him an opportunity to withdraw his guilty plea after the parties discovered that the

pre-plea criminal history report had mistakenly concluded that he was not a career

offender. The government responds that the appeal waiver in Regalado’s plea

agreement bars this appeal. Reviewing de novo, see United States v. Watson, 582

F.3d 974, 981 (9th Cir. 2009), we conclude that the waiver is enforceable.

      Regalado first contends that the waiver is unenforceable because the parties’

mutual mistake of fact rendered his plea involuntary. The written plea agreement

expressly stated that Regalado could be found to be a career offender and

explained the effect that would have on the calculation of his Guidelines range.

Additionally, at the change of plea hearing, the district court informed Regalado

that the Guidelines calculation could be different from counsel’s estimate and that

the choice of sentence was within the court’s sole discretion. Finally, Regalado

never sought to withdraw his plea in the district court, even after he learned of the

mistake regarding his career offender status. On these facts, we conclude that

Regalado’s plea was knowing and voluntary.

      Regalado next contends that the appeal waiver is unenforceable because the

district court violated Federal Rule of Criminal Procedure 11(b)(1)(N) by failing to

confirm that he understood the terms of his waiver. We review for plain error, see


                                           2                                    15-50139
United States v. Ma, 290 F.3d 1002, 1005 (9th Cir. 2002), and find none. The

court explained to Regalado that he was waiving his right to appeal even if “you

don’t like the sentence that I ultimately give you.” Regalado confirmed that he

understood. Even if the court erred by failing to recite the terms of the waiver

more specifically, that error did not effect Regalado’s substantial rights. See id.

      DISMISSED.




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