                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 22 2011

                                                                         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. 11-30075

               Plaintiff - Appellee,             D.C. No. 3:10-cr-00402-MO

  v.
                                                 MEMORANDUM *
RYAN FRANK BONNEAU,

               Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Ryan Frank Bonneau appeals from the 26-month sentence imposed

following his guilty-plea conviction for possession with intent to distribute a

controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). We have




          *
             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. Appellant. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291, and we affirm in part and vacate and remand

in part.

       The government contends that this appeal should be dismissed in light of the

appeal waiver set forth in Bonnea’s plea agreement. We decline to reach that

issue, and instead affirm on the merits. See United States v. Jacobo Castillo, 496

F.3d 947, 957 (9th Cir. 2007) (en banc) (enforceable appeal waiver does not

deprive this Court of jurisdiction).

       Bonneau contends that the district court erred by denying Bonneau’s motion

to withdraw his guilty plea. The district court did not abuse its discretion in

denying Bonneau’s motion because Bonneau failed to show a fair and just reason

for withdrawing his plea. See Fed. R. Crim. P. 11(d)(2)(B); United States v.

Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009). Bonneau also contends that the

district court erred by denying his motion for substitute counsel. To the extent this

claim is not moot, the record shows that the district court did not abuse its

discretion in denying Bonneau’s motion. See United States v. Mendez-Sanchez,

563 F.3d 935, 943-44 (9th Cir. 2009).

       Bonneau further contends that the district erred when it ruled that he was

permanently ineligible to receive federal benefits under 21 U.S.C. § 862. Because

the district court plainly erred in making this determination, and the government


                                           2                                      11-30075
does not object to a limited remand, we remand with instructions to correct the

judgment to delete the ineligibility finding.

      Bonneau’s motion for review of release pending appeal is denied as moot.

      AFFIRMED in part; VACATED and REMANDED in part.




                                           3                                 11-30075
