Gamarra-Betancourt

MEMORANDUM **

Gamarra-Betaneourt’s argument that his plea agreement preserves his right to appeal a misapplication of the Sentencing Guidelines fails in light of United States v. Martinez, 143 F.3d 1266, 1271 (9th Cir.1998) (plea agreement that expressly waives right to appeal sentence extends to *560 appeal based on incorrect sentencing guidelines application). Gamarra-Betancourt’s plea agreement eliminates all of his rights to appeal his sentence except two— (1) whether an upward departure put his sentence “outside the applicable range established by the Sentencing Guidelines” and (2) “any determination by the Court that his Criminal History is higher than Category IV.” The plea agreement specified the applicable range as forty-six to 125 months, depending on offense level and criminal history category.

Gamarra-Betancourt was sentenced to eighty months incarceration with no upward departures. Thus, he cannot appeal because there was no upward departure and his sentence was not outside the applicable range as specified. Gamarra-Betancourt waived all rights to appeal except under two grounds, neither of which applies here.

We also reject the argument that the district court…