Petition for Writ of Certiorari — Daniel Levi, Petitioner v. United States

No. ________________

IN THE SUPREME COURT OF THE UNITED STATES

________________

DANIEL LEVI, Petitioner

v.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KARYN H. BUCUR, ESQ.

24881 Alicia Parkway, E193

Laguna Hills, California 92653

(949) 472-1092

Attorney for Petitioner

DANIEL LEVI

Under Appointment by the Criminal

Justice Act

1

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ............................................................................. ii

QUESTION PRESENTED ................................................................................ 2

OPINION BELOW ............................................................................................ 3

JURISDICTION ................................................................................................ 3

STATEMENT OF THE CASE ......................................................................... 3

STATEMENT OF FACTS ................................................................................ 4

REASON FOR GRANTING THE WRIT ......................................................... 5

CONCLUSION ................................................................................................ 20

APPENDIX A

Unpublished Order from the United States Court

Of Appeals for the Ninth Circuit dated February 28, 2024

i

TABLE OF AUTHORITIES

CASES

PAGE

Burns v. United States

501 U.S. 129, 111 S. Ct. 2182, 115 L. Ed 2d 123 (1991) .............................14

Edwards v. Arizona

451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed 2d 378 (1981) ................................ 6

Gardner v. Florida

530 U.S. 349, 97 S. Ct. 1197, 51 L. Ed 2d 393 (1977) .................................13

Garza v. Idaho

139 S. Ct. 738, 203 L. Ed 2d 77 (2019).....................................................6, 12

In re Williams

83 Cal. App. 4th 936 (2000) ...........................................................................13

Moran v. Burbine

475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986) ................................ 7

Newton v. Rumery

480 U.S. 386, 107 S. Ct. 1187, 94 L. Ed 2d 405 (1987) ...............................15

Shutte v. Thompson

82 U.S. 151, 21 L. Ed 123 (1873)..................................................................17

United States v. Alaniz

69 F. 4th 1124 (9th Cir. 2023) .......................................................................... 9

United States v. Blitz

151 F.3d 1002 (9th Cir, 1998) .......................................................................... 6

United States v. Briggs

623 F. 3d 724 (9th Cir. 2010) .......................................................................7, 8

United States v. Bownes

405 F. 3d 634 (7th Cir. 2005) .........................................................................14

ii

United States v. Bradley

381 F. 3d 641 (7th Cir. 2004) .........................................................................10

United States v. Hahn

359 F. 3d 1315 (10th Cir. 2004) .....................................................................19

United States v. Han

181 F. Supp. 2d 1039 (N.D. Cal. 2002)...................................................13, 19

United States v. Khattak

273 F. 3d 557 (3rd Cir. 2001) .........................................................................19

United States v. McIntosh

582 F. 3d 956 (8th Cir. 2007) ...................................................................11, 12

United States v. Medina-Carrasco

815 F. 2d 457 (9th Cir. 2016) ........................................................................... 7

United States v. Melancon

972 F.2d 566 (5th Cir. 1992) .............................................................. 13-15, 17

United States v. Raynor

989 F. Supp. 43 (Dist. of Columbia 1997) ........................................16, 17, 19

United States v. Robertson

895 F.3d 1206 (9th Cir. 2018) .......................................................................... 8

United States v. Teeter

257 F. 3d 14 (1st Cir. 2001)............................................................................19

United States v. Vega

241 F. 3d 910 (7th Cir. 2001) .........................................................................13

iii

FEDERAL STATUTES

18 U.S.C. § 3553 ............................................................................................... 12

18 U.S.C. § 3582(c)(2)........................................................................................ 4

18 U.S.C. § 3742 ............................................................................................... 12

21 U.S.C. § 841 ................................................................................................... 3

21 U.S.C. § 846 ................................................................................................... 3

21 U.S.C. § 853 ................................................................................................... 3

28 U.S.C. § 1254(1) ............................................................................................ 3

42 U.S.C. § 1983 ............................................................................................... 15

UNITED STATES SENTENCING GUIDELINES

U.S.S.G. § 2D1.1(b)(1) ...................................................................... 6-12, 14, 15

iv

QUESTION PRESENTED

The Ninth Circuit dismissed Mr. Levi’s criminal appeal due to an

appellate waiver in the plea agreement. Mr. Levi argues that the appellate

waiver in his case was unknowing and involuntary (and therefore

unenforceable) because though one may knowingly and voluntarily waive an

unknown future sentence authorized by law, one cannot waive the

constitutionally guaranteed right for the district court to follow the law when

it applies the United States Sentencing Guidelines. The sentencing process

must satisfy the requirements of the Due Process Clause.

The question presented is:

Is an appellate waiver knowing and voluntary when the waiver’s

scope includes a sentence contrary to law and unauthorized by the United

States Sentencing Guidelines when a criminal defendant enjoys a

constitutionally-protected liberty interest in being sentenced according to

law?

2

OPINION BELOW

On February 28, 2024, the United States Court of Appeals for the

Ninth Circuit filed dismissed Mr. Levi’s appeal in United States v. Daniel

Levi, No. 23-805, due to an appeal waiver. A copy of this Order is attached

hereto as Appendix “A”.

JURISDICTION

On February 28, 2024, the United States Court of Appeals for the

Ninth Circuit dismissed Mr. Levi’s appeal. Jurisdiction is invoked under 28

U.S.C. § 1254(1).

STATEMENT OF THE CASE

On October 11, 2023, Mr. Levi and co-defendant Ovadiah Davidian

were charged by Superseding Information in count 1 with conspiracy to

distribute fentanyl in violation of Title 21 U.S.C. § 841(a)(1) and 21 U.S.C. §

846. (ER-74.)1 In count 2, the defendants were charged with possession with

intent to distribute fentanyl in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C.

§ 841(b)(1)(B). (ER-75.) The Superseding Information alleged forfeiture

allegations pursuant to Title 21 U.S.C. § 853. (ER-75-76.)

“ER” refers to the Excerpts of Record filed in Ninth Circuit in case

number 23-805 and “PSR” refers to the Pre-Sentence Report filed in case

number 23-805.

1

3

Mr. Levi and the government entered into a plea agreement on October

11, 2022. (ER-57.) Mr. Levi entered guilty pleas to count 1 and count 2 of the

Superseding Information. (CR 64.)

On April 7, 2023, the district court sentenced Mr. Levi to a term of 70

months of imprisonment on count 1 and on count 2, to run concurrently. (ER38.) Mr. Levi filed his timely Notice of Appeal on April 21, 2023. (ER-77.)

On February 28, 2024, the Ninth Circuit dismissed his appeal. (Appendix

“A”.) On May 14, 2024, the district court granted the motion to reduce Mr.

Levi’s sentence pursuant to 18 U.S.C. § 3582(c)(2). Mr. Levi’s sentence was

reduced to 57 months.

STATEMENT OF FACTS

The plea agreement contained a factual basis for the guilty plea.

Daniel Levi and co-defendant Ovadiah Davidian agreed with each other and

other persons to distribute fentanyl. (ER-60-62.)

Investigators seized defendant’s and Davidian’s phones that included

text messages of recent narcotics sales and distribution. Mr. Levi became a

member of the conspiracy knowing that its object was to distribute fentanyl or

some other federally controlled substance. Mr. Levi also knew that the

amount of fentanyl involved in the conspiracy was at least 40 grams.” (ER4

60-62.)

REASONS FOR GRANTING THE WRIT

This petition raises the question: Can a criminal defendant, who has a

constitutionally-protected liberty interest to being sentenced according to the

law, knowingly and voluntarily waive his right to appeal a sentence that is

unlawful and is contrary to the law established by Congress in exchange for

a plea of guilty?

In this case, Mr. Levi and the government entered into a plea

agreement. (ER-57-73.) The plea agreement contains a waiver of appeal

provision. (ER-69-70.) It states: “Defendant waives (gives up) all rights to

appeal and to collaterally attack every aspect of the conviction and sentence.

This waiver includes, but is not limited to, any argument that the statute of

conviction or Defendant’s prosecution is unconstitutional and any argument

that the facts of this case do not constitute the crime charged. The only

exception is defendant may collaterally attack the conviction or sentence on

the basis that the defendant received ineffective assistance of counsel.” (ER69-70.)

The government filed a motion to dismiss this appeal due to this

appellate waiver. The Ninth Circuit granted the government’s motion and

5

dismissed the appeal. (App. A.)

Normally, an express waiver of the right to appeal is valid as

long as it is knowingly and voluntarily made. United States v. Blitz,

151 F. 3d 1002, 1006 (9th Cir. 1998). The touchstone in considering

the validity of a waiver is whether the waiver was voluntary,

intelligent, and knowing. Edwards v. Arizona, 451 U.S. 477, 482, 101

S. Ct. 1880, 68 L. Ed 2d 378 (1981). A criminal defendant retains

“the right to challenge whether the waiver itself is valid and

enforceable—for example, on the grounds that it was unknowing or

involuntary”. Garza v. Idaho, 139 S. Ct. 738, 745, 203 L. Ed. 2d 77

(2019).

Mr. Levi argues that the waiver of the appeal of his sentencing

order was not knowingly and voluntarily made because he expected

the district court to adhere to the law as it relates to the imposition of

the 2-level increase for weapon possession pursuant to U.S.S.G. §

2D1.1(b). “A defendant cannot know what he or she has given up by

waiving the right to appeal until after the judge and counsel have

reviewed a yet-to-be-prepared presentence investigation report, after

the judge has considered other information not known to the

6

defendant at the time of the plea, and after the judge has actually

imposed sentence. By then it is too late, no matter how

disproportionate the sentence or how egregious the procedural or

substantive errors committed by the sentencing judge or the

defendant’s own counsel.” United States v. Medina-Carrasco, 815 F.

3d 457, 464 (9th Cir. 2016) (dis. opn. of Friedman, P.).

“It is hard to see how a defendant at the plea hearing can ever

knowingly and intelligently – that is, with ‘a full awareness of both

the nature of the right[s] being abandoned and the consequences of the

decision to abandon it,’ Moran v. Burbine, 475 U.S. 412, 422, 106 S.

Ct. 1135, 89 L. Ed. 2d 410 (1986)—waive the right to appeal or

collaterally attack a sentence that has not yet been imposed. Such

prospective waivers in anticipation of unknown future events are

inherently unknowing and unintelligent.” United States v. MedinaCarrasco, supra, 815 F. 3d at 464 (dis. opn. of Friedman, P.).

The district court’s decision to increase Mr. Levi’s offense level

by two levels pursuant to U.S.S.G. § 2D1.1(b)(1) is contrary to law

pursuant to United States v. Briggs, 623 F. 3d 724, 731 (9th Cir. 2010).

Furthermore, the district court’s finding that a weapon was used

7

during the conspiracy to distribute fentanyl was incorrect because this

fact is unsupported by the record. United States v. Robertson, 895 F.

3d 1206, 1213 (9th Cir. 2018). In fact, the government agreed the

record did not support a finding that a weapon was used during the

conspiracy and advocated that the district court not impose the twolevel enhancement pursuant to U.S.S.G. § 2D1.1(b)(1). (ER-29, ER30.)

In Briggs, the law provides a two-level enhancement for

weapon possession pursuant to U.S.S.G. § 2D1.1(b)(1) only applies

when there is proof or evidence that weapons were present during the

offense. United States v. Briggs, supra, 623 F. 3d at 731. The

defendant in Briggs “repeatedly bragged about the guns he had access

to, but none of these firearms were ever recovered”. Id. In the

present case, similar to Briggs, though weapons were discussed in the

text message between Mr. Levi and co-defendant, no firearm was ever

recovered.

More important, the Ninth Circuit has held that the plain language of

§ 2D1.1(b)(1) requires possession of a weapon that was possessed and

present during the crime. United States v. Briggs, supra, 623 F. 3d at 731;

8

United States v. Alaniz, 69 F.4th 1124, 1126 (9th Cir. 2023. “Under §

2D1.1(b)(1), the government simply bears the burden of proving that the

weapon was possessed at the time of the offense.” United States v. Alaniz,

supra, 69 F. 4th 1126-1127. This means that the defendant must possess a

weapon at the time when the charged offense was committed. In order for

Mr. Levi to receive the two-level enhancement pursuant to U.S.S.G. §

2D1.1(b)(1), the government had to prove a weapon was present at the time

when Mr. Levi was conspiring to distribute fentanyl. United States v. Alaniz,

supra, 69 F. 4th 1126-1127.

In this case, government argued that the two-level enhancement

pursuant to U.S.S.G. § 2D1.1(b)(1) was inapplicable to this case and conceded

that weapons discussed in the text messages were not connected to the

conspiracy to distribute fentanyl: the government “could not tie essentially

that conversation to the greater distribution scheme” and “in the greater

context of how those text messages were made, we could not specifically link

what the violent conduct was displayed in those text messages to the actual

distribution scheme that Mr. Levi was actually involved in at that time”. (ER29, ER-30.)

Review of this text conversation between Mr. Levi and Mr. Davidian

9

confirms the government’s argument that the discussion had nothing to do

with anything related to fentanyl distribution. (PSR, ¶ 10.) As defense counsel

stated, “this conversation was Mr. Davidian’s effort to antagonize Mr. Levi

into some nebulous retribution that, frankly, never occurs.” (ER-14.)

Therefore, because the law requires that government must prove a

weapon was possessed at the time of the offense for the two-level

enhancement to apply pursuant to U.S.S.G. § 2D1.1(b)(1)—the fact that the

government conceded the conversation between Mr. Levi and Mr. Davidian

could not establish any weapons were connected to the offense charged in this

case, shows that as matter of law the two-level enhancement could not be

applied.

Here, the appellate waiver is invalid because Mr. Levi could not have

waived his right to challenge the district court’s decision that is contrary to

law. At a minimum, Mr. Levi expected the district court to adhere to the

law when determining his sentence. “When the government proposes a plea

agreement, when the defendant accepts it and when the district court

enforces it, there must be a meeting of minds on all of its essential terms.”

United States v. Bradley, 381 F. 3d 641, 648 (7th Cir. 2004). Here, an

essential term is that the district court impose the sentence in conformance

10

with the law. There was no meeting of the minds on a sentence that was not

based on established law.

In United States v. McIntosh, 482 F. 3d 956, 959, 960 (8th Cir.

2007), the defendant and the government entered into an appellate

waiver including those involving the sentence imposed. However, in

McIntosh, the defendant did not agree with the Government’s

recommendations in the plea agreement regarding the amount of loss

attributable to the scheme. These objections were noted in the plea

agreement and McIntosh objected to the PSR, which mirrored the

Government’s recommendation on these two issues.” United States v.

McIntosh, supra, 482 F. 3d at 960. Therefore, the court in McIntosh

considered the merits defendant’s amount of loss issue under

guidelines despite of the appellate waiver. Id.

In the present case, both Mr. Levi and the government believed

the weapons enhancement pursuant to U.S.S.G. §2D1.1(b)(1) did not

apply because there was no factual basis in the record to establish that

a weapons was used during the conspiracy to distribute fentanyl. (ER14, ER-29-30.)

Mr. Levi did not waive his right to raise this issue on appeal.

11

United States v. McIntosh, supra, 482 F. 3d at 960; Garza v. Idaho,

supra, 139 S. Ct. at 745. Therefore, the district court should have

considered the merits of the sentencing issue relating to the improper

two-level increase of the offense level for weapons possession

pursuant to U.S.S.G. §2D1.1(b)(1).

Congress mandates that absent an upward or downward

departure, “the court shall impose a sentence of the kind, and within

the range” set forth in the guidelines issued by the United States

Sentencing Commission. 18 U.S.C. § 3553 (b). This congressional

mandate anticipates that the sentence will reflect the correct

application of the guidelines. To assure sentencing accuracy, Congress

expressly afforded a right to appeal where sentence “was imposed as a

result of an incorrect application of the sentencing guidelines.” 18

U.S.C. § 3742 (a)(2). Congress also expressly afforded a right to

appeal where the sentence was imposed in violation of law. 18 U.S.C.

§ 3742 (a)(1).

Here, Mr. Levi argues that his sentence was imposed in

violation of law. “The question of whether a waiver is made

‘knowingly’ and ‘voluntarily’ thus involves inquiring into whether the

12

defendant would plead guilty and unilaterally give up his right to

appeal if he understood that the court might impose a legally erroneous

sentence….from which the defendant cannot appeal.” (Emphasis in

original) United States v. Han, 181 F. Supp. 2d 1039, 1042 (N.D. Cal.

2002).

Here, Mr. Levi did not understand that the appellate waiver’s

scope included an unauthorized and unlawful sentence that he could

not appeal. A plea bargain that purports to authorize the court to

exercise a power it does not have is unlawful and may not be enforced.

For an appellate waiver to be enforceable, the disputed appeal

must fall within its scope. United States v. Vega, 241 F. 3d 910, 912

(7th Cir. 2001). An appellate waiver provision that permits an

unauthorized act by the district court in exchange for a guilty plea is

not enforceable. See In re Williams, 83 Cal. App. 4th 936, 945 (2000);

United States v. Melancon, 972 F. 2d 566, 577 (5th Cir. 1992)(Parker,

J., concurring), citing to Gardner v. Florida, 530 U.S. 349, 358, 97 S.

Ct. 1197, 1204, 51 L. Ed 2d 393 (1977)(“the sentencing process must

satisfy requirements of the Due Process Clause”)

A plea agreement is a type of contract subject to contract law

13

principles but is limited by constitutional considerations. United

States v. Bownes, 405 F. 3d 634, 636 (7th Cir. 2005). A criminal

defendant enjoys a constitutionally-protected liberty interest in being

sentenced according to the Guidelines. United States v. Melancon,

supra, 972 F.2d at 577, citing to Burns v. United States, 501 U.S. 129,

111 S. Ct. 2182, 2186-2188, 115 L. Ed 2d 123 (1991). The sentencing

process must satisfy the requirements of the due process clause. Id., at

2190-2192, 2196-2197 (Souter, J, dissenting.) “Every erroneous

application of the Guidelines frustrates the complex policy goals that

Congress and the United States Sentencing Commission intended for

the Guidelines to further.” United States v. Melancon, supra, 972 F.2d

at 575.

In this case, appellate review of the imposition of the two-level

enhancement for weapon possession pursuant to U.S.S.G. §

2D1.1(b)(1) is essential to assure that United States Sentencing

Guidelines are applied properly and to develop case law demonstrating

when a weapon possession enhancement is appropriate pursuant to

U.S.S.G. § 2D1.1(b)(1).

The waiver of appeal provision in the plea agreement is not valid and is

14

unenforceable because it was not knowingly and voluntarily made. The

waiver of appeal of Mr. Levi’s sentence was not knowingly and voluntarily

made because Mr. Levi expected the district court to adhere to the law as it

relates to the imposition of his sentence The district court’s decision to

increase Mr. Levi’s sentence by two-levels pursuant to U.S.S.G. § 2D1.1(b)(1)

because it found Mr. Levi possessed a weapon during the conspiracy to

distribute fentanyl is unsupported by the record and the imposition of this

enhancement was unlawful.

It is true that a criminal defendant may waive a constitutional right as

part of a plea-bargaining agreement. However, these rights involve a known

quantity. For example, in Newton v. Rumery, 480 U.S. 386, 392-398, 107

S. Ct. 1187, 94 L. Ed 2d 405 (1987), the right waived was the right to sue

under 42 U.S.C. § 1983. Thus, the waiver was of a known quantity: a

lawsuit—of which the one waiving had full knowledge, and over which the

one waiving exercised control. United States v. Melancon, supra, 972 F. 2d

at 572.

The waiver of any sentencing issue in this case, “contrasts with

every other waiver provision typically included in a plea agreement.

Every other right that normally is relinquished is a known, well15

defined right, and the quid pro quo is understandable. For example,

when a defendant gives up the right to trial in favor of a plea, he or she

knows that there will no longer be twelve jurors setting in judgment,

that there will no longer be live testimony and the right to confront

witnesses, and that there will be no speedy and public trial.” United

States v. Raynor, 989 F. Supp. 43, 44 (Dist. of Columbia 1997).

“Moreover when a defendant waives the right to a trial by jury in

exchange for a plea to few counts or lesser offense, the defendant not

only gives up any advantages that may come with a jury trial but also

is relieved of the uncertainties that may result from exercising the right

to trial. United States v. Raynor, supra, 989 F. Supp. at 44.

“When a defendant waives the right to appeal a sentence,

however, he or she is freed of none of the uncertainties that surround

the sentencing process in exchange for giving up the right to later

challenge a possibly erroneous application or interpretation of the

Sentencing Guidelines or a sentencing statute.” United States v.

Raynor, supra, 989 F. Supp. at 44. “Under the plea agreement

proffered by the government, the defendants would have no right to

ask the court of appeals to correct the illegal or unconstitutional

16

ramifications of such sentencing errors.” United States v. Raynor,

supra, 989 F. Supp. at 44.

In an appellate waiver, ‘what is really being waived is not some

abstract right to appeal, but the right to correct an erroneous

application of the Guidelines or an otherwise illegal sentence.” United

States v. Melancon, supra, 972 F. 2d at 572. This Court has held that a

party may waive any provision either of a contract or of a statute

intended for his benefit. Shutte v. Thompson, 82 U.S. 151, 159, 21 L.

Ed. 123 (1873). Waiver of the constitutional right to be sentenced

according to law cannot be to a defendant’s benefit…because a

criminal defendant enjoys the right to be sentenced according to the

law. United States v. Melancon, supra 972 F.2d at 577.

The government argued and the Ninth Circuit agreed that Mr. Levi

waived the right to appeal a sentence that was imposed “contrary to law”.

(App. “A”) However, Mr. Levi could never knowingly or intentionally

waive an appeal of a sentence that was imposed in violation of law.

Allowing a waiver of an appellate right of an unlawful sentence would

drastically curtail the role of appellate review in assuring the correct and

uniform application of sentences by the district courts. Appellate review

17

allows the correction of aberrant, illegal, or biased sentencing determination

and furthers the purpose of legislative sentencing reform by promoting

uniformity and fairness with the system as a whole. Robert K. Calhoun,

Waiver of the Right to Appeal, 23 Hastings Const. L. Q. , 127, 200, 200-211

(1995).

The government’s waiver theory would require that courts find

that Mr. Levi “knowingly and voluntarily” waived any objection to a

sentence imposed in violation of established Ninth Circuit law. Here,

Mr. Levi argues that his sentence was not imposed within the law. At

the time of the plea agreement, Mr. Levi could not anticipate that the

district court would impose a sentence not in conformance with the

law. Therefore, his waiver of appeal could not have been knowingly

and voluntarily made. No one could knowingly and voluntarily waive

an appeal of a sentence that was imposed in violation of the law.

There is not a circuit split on whether an appellate waiver is

knowing and voluntary when the waiver’s scope includes a sentence

contrary to law and unauthorized by the United States Sentencing

Guidelines. However, there are some district courts that take the

position that a waiver of appeal of an illegal or unauthorized sentence

18

can never be enforced. United States v. Han, supra, 181 F. Supp. 2d at

1040-1044; United States v. Raynor, supra, 989 F. Supp. at 44-48.

And, there are circuit courts that have held that appellate waivers of

sentencing issues should be enforced. United States v. Hahn, 359 F.3d

1315, 1325-1327 (10th Cir. 2004); United States v. Khattak, 273 F. 3d

557, 559-563 (3rd Cir. 2001); United States v. Teeter, 257 F. 3d 14, 21

(lst Cir. 2001).

Based on the foregoing, Mr. Levi requests that this Court grant

certiorari in this case to answer the question of whether an appeal

waiver is knowing and voluntary when its scope includes a sentence

contrary to the United States Guidelines when a criminal defendant

enjoys a constitutionally-protected liberty interest in being sentence

according to the law. This petition for writ of certiorari should be

granted.

19

CONCLUSION

For the foregoing reasons, Mr. Levi respectfully subm.its that the

petition for writ of certiorari should be granted.

Dated: May 23, 2024

R~ect.fully Submitt.ed,..·

'

1(-'@~

K;~ucur

• ·•

Attorney for Petitioner

20

·

Case: 23-805, 02/28/2024, DktEntry: 24.1, Page 1 of 2

UNITED STATES COURT OF APPEALS

FILED

FEB 28 2024

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

No. 23-805

D.C. No.

3:22-cr-01176-TWR-1

Southern District of California,

San Diego

Plaintiff - Appellee,

v.

ORDER

DANIEL LEVI,

Defendant - Appellant.

Before: CLIFTON, CALLAHAN, and H.A. THOMAS, Circuit Judges.

Appellee’s motion to dismiss this appeal in light of the valid appeal waiver

(Docket Entry No. 22) is granted. See United States v. Harris, 628 F.3d 1203,

1205 (9th Cir. 2011) (knowing and voluntary appeal waiver whose language

encompasses the right to appeal on the grounds raised is enforceable). Appellant’s

argument that the waiver is unenforceable because he did not knowingly and

voluntarily waive his right to appeal a sentence that is “contrary to law,” is

unavailing. See United States v. Medina-Carrasco, 815 F.3d 457, 462-63 (9th Cir.

2016) (“That [the defendant] did not realize the strength of his potential appellate

claims at the time that he entered into the plea agreement does not permit him to

invalidate his knowing and voluntary waiver of appellate rights.” (internal

quotation marks omitted)); United States v. Martinez, 143 F.3d 1266, 1271 (9th

Cir. 1998) (“When a plea agreement expressly waives a defendant’s right to appeal

APPENDIX 'A'

Case: 23-805, 02/28/2024, DktEntry: 24.1, Page 2 of 2

a sentence, the waiver extends to an appeal based on an incorrect application of the

sentencing guidelines.”).

DISMISSED.

2

APPENDIX 'A'

23-805