United States v. Harvest White

MEMORANDUM

Harvest Dawn White appeals the sentence imposed following his guilty plea to negligent vehicular assault in violation of 18 U.S.C. § 1152 and Montana Code Annotated § 45-5-205(1) and (3). He argues the district court erred in determining that the “aggravated assault” guideline, U.S.S.G. § 2A2.2, provided the most analogous offense to the charged crime. We have jurisdiction under 28 U.S.C. § 1291 . “We review de novo whether a defendant has waived his right to appeal by entering into a plea agreement and the validity of such a waiver.” United States v. Harris, 628 F.3d 1203, 1205 (9th Cir.2011) (citation omitted).

“A defendant’s waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” Id. (citation, alteration, and internal quotation marks omitted). As part of the plea agreement, White agreed to waive “any and all right to directly appeal the sentence.” This waiver unambiguously encompasses the district court’s determination as to which guideline was the most analogous. See United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en…