                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                                 FEB 26 2015

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

    UNITED STATES OF AMERICA,                   No. 13-10525

             Plaintiff-Appellee,                D.C. 4:13-cr-00503-RCC-HCE-1

     v.                                         MEMORANDUM*

    JOSE TRINIDAD HERNANDEZ-LOPEZ,

              Defendant-Appellant.


                 On Appeal from the United States District Court
                           for the District of Arizona
                   Raner C. Collins, District Judge, Presiding

                     Argued and Submitted January 14, 2015
                            San Francisco, California

Before: O’SCANNLAIN and CLIFTON, Circuit Judges, and RAKOFF, Senior
District Judge.**




*
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
      The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
      Defendant Jose Trinidad Hernandez-Lopez appeals from the 37-month

sentence imposed following his guilty plea to illegal re-entry after deportation in

violation of 8 U.S.C. § 1326. Specifically, Hernandez-Lopez challenges the district

court’s determination that he had previously been convicted of a “crime of

violence” that justified a sentencing enhancement pursuant to U.S.S.G. §

2L1.2(b)(1)(A)(ii). Because we conclude that Hernandez-Lopez waived his right

to appeal this issue, we decline to reach it and dismiss the appeal.

      On April 25, 2013, Hernandez-Lopez pleaded guilty pursuant to a “fast

track” plea agreement. The agreement listed 24 possible Guidelines ranges that

could apply to Hernandez-Lopez depending on what the district court calculated

his offense level and criminal history category to be, and it explained that the

district court would make the ultimate decision regarding what sentence to impose

as the Guidelines are only advisory. The agreement also included a provision under

which Hernandez-Lopez agreed to relinquish, among other things, his right to

appeal “any aspect of [his] sentence -- including the manner in which the sentence

is determined and any sentencing guideline determinations” -- “[p]rovided [he]

receive[d] a sentence in accordance with” the agreement. In exchange for signing

on to the fast track agreement, Hernandez-Lopez became eligible for a two-level

reduction of his offense level.


                                         -2-
      On September 25, 2013, the district court determined that the applicable

Guidelines range was 37 to 46 months’ imprisonment and then sentenced

Hernandez-Lopez to 37 months. This Guidelines range corresponds to the range

articulated in the plea agreement for a base offense level of 24 and a criminal

history category of III. Thus, because the sentence the district court imposed fell

within the range provided for in the plea agreement, the sentence was “in

accordance with” the agreement, and the appeal waiver applies to bar Hernandez-

Lopez’s challenge to the district court’s Guidelines calculation.

      Resisting this conclusion, Hernandez-Lopez argues that the plea agreement

is ambiguous as to whether the district court must first correctly calculate the

Guidelines range for its eventual sentence to be “in accordance with” the

agreement and that we must construe that ambiguity against the drafter, here, the

Government. See United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009). We

disagree. Although the agreement is less than ideally worded,1 that does not make



      1
        We are mystified that, despite frequent criticisms of the phrasing of these
fast track plea agreements, see, e.g., United States v. Banos-Mejia, 588 F. App’x
522, 523 (9th Cir. 2014); United States v. Gonzales-Garcia, 541 F. App’x 764, 765
(9th Cir. 2013); United States v. Baltazar-Neri, 540 F. App’x 630, 631 (9th Cir.
2013); United States v. Aguilar-Balbuena, 475 F. App’x 222, 223 (9th Cir. 2012),
the Office of the United States Attorney for the District of Arizona persists in using
the same language.

                                         -3-
it ambiguous. To be ambiguous, the agreement must be susceptible to more than

one reasonable interpretation. See United States v. Allen, 157 F.3d 661, 668 (9th

Cir. 1998). Under Hernandez-Lopez’s reading, the waiver applies if and only if

Hernandez-Lopez accepts the district court’s determinations. Put differently,

Hernandez-Lopez limits the operation of the appeal waiver to when there would be

no appeal. We fail to see how an interpretation that renders the waiver superfluous

is reasonable.2 Cf. United States v. Irvine, 756 F.2d 708, 710 (9th Cir. 1985) (“The

language of the contract is to be read as a whole and given a reasonable

interpretation, not an interpretation that would produce absurd results.”) (citation

omitted).

      Accordingly, because the interpretation that the Government proposes and

with which we agree -- that a sentence is “in accordance with” the agreement if it

falls within one of the Guidelines ranges listed in the agreement (and the district

court takes into account the two-level “fast track” reduction) -- is the only

reasonable one, we reject Hernandez-Lopez’s reading, uphold the appeal waiver,

and dismiss the appeal.

      DISMISSED.


      2
      On this point, we find it telling that Hernandez-Lopez has offered no
evidence that he actually understood the agreement to operate in this manner.

                                          -4-
