                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 08 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50240

              Plaintiff - Appellee,              D.C. No. 8:10-cr-00155-CJC-1

  v.
                                                 MEMORANDUM*
RICHARD H. NICKLES,
AKA Richard H. Nickels,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                          Submitted November 6, 2013**
                              Pasadena, California

Before: FISHER and CLIFTON, Circuit Judges, and SINGLETON, 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 James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
      Defendant Richard Nickles pled guilty to one count of mail fraud and one

count of securities fraud and was sentenced to 144 months’ imprisonment. On

appeal, he raises a number of challenges to his sentence. The government argues

that this appeal is barred by Nickles’s waiver of his right to appeal. We dismiss the

appeal.

      We review whether a defendant has waived his right to appeal de novo. See

United States v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997) (per curiam).

      To determine whether the district court’s statements during the sentencing

hearing regarding Nickles’s right to appeal his sentence render the waiver

unenforceable, we focus on “both the court’s statement[s] and the defendant’s

reasonable expectations about his rights.” United States v. Arias-Espinosa, 704

F.3d 616, 618 (9th Cir. 2012). Although the court advised Nickles that he had a

right to challenge his sentence on appeal, the government immediately objected on

the basis of the plea agreement’s appellate waiver, leading the court to qualify its

advice. As a result, the sum of the court’s statements advising Nickles of a right to

appeal his sentence was neither unambiguous nor without qualification. See id. at

619; United States v. Watson, 582 F.3d 974, 987–88 (9th Cir. 2009). In addition,

the government’s objection itself put Nickles on notice that the government

intended to enforce the waiver notwithstanding the court’s statements regarding his


                                          2
right to appeal, defeating any reasonable expectations of appealing his sentence

that he may otherwise have had. See Schuman, 127 F.3d at 817; United States v.

Buchanan, 59 F.3d 914, 918 (9th Cir. 1995).

      Nickles’s argument that the government’s alleged breach of the plea

agreement renders the appellate waiver unenforceable is without merit. The literal

terms of the plea agreement required the government to recommend a sentence no

higher than the low end of the applicable Sentencing Guidelines range. See United

States v. Myers, 32 F.3d 411, 413 (9th Cir. 1994) (per curiam). The government

satisfied this obligation by recommending a low-end sentence in its three written

sentencing submissions and explicitly referring to and abiding by these written

submissions at the sentencing hearing. Myers is distinguishable because in that

case the government failed to make any recommendation at all until after the

defendant had already been sentenced. Id. We also reject Nickles’s argument that

the government must utter the words “low end” in making a recommendation at the

sentencing hearing.

      DISMISSED.




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