NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30085

Plaintiff-Appellee, D.C. No. 2:16-cr-00136-SMJ-3 v.

CLAYTON EUGENE BUSKIRK, AKA MEMORANDUM*

Clayton Buskirk,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

Submitted March 5, 2020** Seattle, Washington

Before: IKUTA and R. NELSON, Circuit Judges, and OLIVER,*** District Judge.

Clayton Eugene Buskirk appeals his conviction and 121-month sentence,

contending that his guilty plea was not knowingly and voluntarily entered. He asserts

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. that his plea agreement was illusory because he was misled by the government into

believing that he qualified for safety valve. He also maintains that the government

violated the terms of the plea agreement when it failed to recommend that he receive

offense level reductions for acceptance of responsibility and safety valve, as required

by the plea agreement, and argued specific offense characteristics in direct

contravention of the plea agreement. Further, he argues that the district court erred

when it denied him safety valve and acceptance of responsibility reductions. The

government argues that Buskirk knowingly and voluntarily waived his right to this

appeal when he entered a guilty plea pursuant to his plea agreement. We agree with

the government, and find that Buskirk’s waiver of his appellate rights is valid and

enforceable. Accordingly, we dismiss this appeal.

We review de novo whether an appellant has waived his right to appeal,

United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004), and whether a defendant’s

guilty plea was voluntary, United States v. Forrester, 616 F.3d 929, 934 (9th Cir.

2010). Generally, “[a] defendant’s waiver of his appellate rights is enforceable if the

language of the waiver encompasses his right to appeal on the grounds raised, and if

the waiver was knowingly and voluntarily made.” Joyce, 357 F.3d at 922 (citing

United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996)). However, a waiver

will not be enforced if the government breaches the plea agreement, releasing the

defendant from his appellate waiver. See United States v. Gonzalez, 16 F.3d 985,

2 18-30085 990 (9th Cir. 1993). The Court reviews de novo a defendant’s claim that the

government breached its plea agreement. United States v. Whitney, 673 F.3d 965,

970 (9th Cir. 2012). However, when a defendant forfeits his claim by failing to make

a timely objection, the Court reviews the defendant’s claim for plain error. Id.

(internal citations omitted). Because Buskirk raises his claim of breach for the first

time on appeal, we review it for plain error.

Here, there is no dispute regarding the fact that the broad language of

Buskirk’s appellate waiver would preclude this appeal. Thus, the Court need only

address whether Buskirk’s guilty plea was knowingly and voluntarily made. An

appellate waiver is knowingly and voluntarily made if the guilty plea as a whole was

knowing and voluntary. See United States v. Jeronimo, 398 F.3d 1149, 1154 (9th

Cir. 2005). A guilty plea is involuntary if it is induced by threats or

misrepresentation, including unfulfilled or unfulfillable promises. See United States

v. Kaczynski, 239 F.3d 1108, 1114 (9th Cir. 2001). In determining whether a

defendant’s waiver is knowing and voluntary, the Court looks “to the circumstances

surrounding the signing and entry of the plea agreement to determine whether the

defendant agreed to its terms knowingly and voluntarily.” Baramdyka, 95 F.3d at

843. In determining whether the government breached the plea agreement, the Court

looks to “what was reasonably understood by the defendant when he entered his plea

3 18-30085 of guilty.” United States v. Kamer, 781 F.2d 1380, 1387 (9th Cir. 1986) (internal

citation and quotation marks omitted)).

The record reflects that Buskirk knowingly and voluntarily entered his plea of

guilty. After thorough questioning during the Rule 11 colloquy, Buskirk, under oath,

confirmed that he understood the terms of the plea agreement, including the

appellate waiver, and affirmed that he was entering his guilty plea freely, knowingly,

and voluntarily.

In addition, the record reflects that neither the government nor the terms of

the plea agreement misled Buskirk into believing that he would actually receive a

safety valve reduction. Further, contrary to Buskirk’s assertion, the government did

not breach the plea agreement because: the plea agreement did not require the

government to recommend that he receive a safety valve reduction; the government

fulfilled its promise to recommend that he receive a reduction for acceptance of

responsibility; and the government did not argue specific offense characteristics to

the district court, as he maintains. Moreover, Buskirk’s plea agreement was not

“illusory” because Buskirk might have qualified for a safety valve reduction had he

provided the government with truthful and complete information before sentencing.

Accordingly, because Buskirk’s guilty plea was knowingly and voluntarily

made and the government did not breach the plea agreement, his appellate waiver is

valid and enforceable.

4 18-30085 Therefore, we dismiss this appeal without reaching the merits of Buskirk’s

remaining arguments.

DISMISSED.

5 18-30085