                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                           FOR THE NINTH CIRCUIT
                                                                            JUL 26 2016
UNITED STATES OF AMERICA,                        No. 14-10423          MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


              Plaintiff - Appellee,              D.C. No. 2:09-cr-00212-ROS-1

 v.
                                                 MEMORANDUM*
LUIS ENRIQUE VILLEGAS-LUGO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Roslyn O. Silver, Senior District Judge, Presiding

                             Submitted July 22, 2016**
                             San Francisco, California

Before: GRABER and TALLMAN, Circuit Judges, and RAKOFF,*** Senior
District Judge.

      Defendant Luis Enrique Villegas-Lugo appeals from the district court’s

judgment and challenges his guilty-plea conviction and 210-month sentence for

        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
        ***
          The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
conspiracy to possess with intent to distribute methamphetamine, in violation of 21

U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(viii). Because Defendant waived his right

to appeal his conviction and sentence, we dismiss the appeal.

      Defendant contends that the waiver is unenforceable because the district

court failed to provide the advisements required by Federal Rule of Criminal

Procedure 11 and Apprendi v. New Jersey, 530 U.S. 466 (2000). He argues that

the district court erred by failing to inform him, during the plea colloquy, that the

government bore the burden of proving drug quantity beyond a reasonable doubt.

Because Defendant did not object to the adequacy of the plea colloquy before the

district court, we review for plain error. See United States v. Watson, 582 F.3d

974, 987 (9th Cir. 2009) (enforcing an appellate waiver because there was no plain

error in the district court’s Rule 11 plea colloquy).

      Defendant did not challenge the drug quantity or drug type alleged in the

indictment. Rather, he admitted under oath that he had "sent a drug courier to meet

[his brother] in Phoenix to deliver approximately 20 pounds of methamphetamine."

Moreover, the evidence supporting the drug quantity was overwhelming:

Defendant was captured on wiretaps arranging for a shipment of approximately 20

pounds of methamphetamine to a stash house, the calls reflected that the shipment

was received, and the agents found approximately 20 pounds of methamphetamine


                                           2
in their search of the stash house the next day. Defendant’s claim, therefore, does

not satisfy the requirements of plain error review. See United States v. Valensia,

299 F.3d 1068, 1076–77 (9th Cir. 2002) (applying plain error review and affirming

the district court, despite its failure to inform the defendant that the government

was required to prove drug quantity beyond a reasonable doubt, "because the

evidence that the conspiracy involved [the drug quantity in question] was

overwhelming and uncontroverted").

      Defendant’s remaining arguments that the waiver is unenforceable likewise

fail. First, the district court did not advise Defendant that he retained the right to

appeal "without qualification." See Watson, 582 F.3d at 987 ("Where a judge

advises a defendant, without qualification, that he or she has a right to appeal, the

defendant will be deemed to have such a right even though it was waived in the

plea bargain." (internal quotation marks and brackets omitted)). Second, the

sentence comported with the plain terms of the plea agreement, which contained no

stipulation as to the final sentence but only a stipulation that Defendant would be

assessed a two-level enhancement for possession of a firearm during commission




                                            3
of the offense. Finally, for the reasons noted above, Defendant’s claim that the

plea colloquy violated Apprendi does not establish that his sentence was unlawful.1

      DISMISSED.




      1
      Because we hold that the appellate waiver is enforceable, we do not reach
Defendant’s arguments on the merits.

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