                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 16 2010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. 09-50488

              Plaintiff - Appellee,              D.C. No. 3:08-cr-03763-JLS

  v.
                                                 MEMORANDUM *
LORENA VIVINA RODRIGUEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                           Submitted December 9, 2010 **
                               Pasadena, California

Before: PREGERSON and CLIFTON, Circuit Judges, and HOLLAND, 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 H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
      Rodriguez’s appellate waiver is enforceable. The district court’s oral

pronouncement does not supersede the waiver. The district court merely stated

that Rodriguez could contest whether her waiver was enforceable before an

appellate court, not that Rodriguez could appeal her sentence on the merits.

Further, the government objected to any suggestion by the district court that

Rodriguez had a right to appeal. See United States v. Buchanan, 59 F.3d 914,

917-18 (9th Cir. 1995). The government did not breach the plea agreement by not

recommending safety-valve relief because Rodriguez lied during her safety-valve

debrief and in her subsequent proffer. See United States v. Shrestha, 86 F.3d 935,

939 (9 th Cir. 1996). Rodriguez’s argument that enforcement of the appellate

waiver would result in a miscarriage of justice is nothing more than an attempt to

have the court consider the merits of her appeal, which the court cannot do because

she has waived her right to appeal.

DISMISSED.




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