Mendoza-Valencia

MEMORANDUM **

Arnoldo Mendoza-Valencia appeals his conviction and 46-month sentence imposed following his guilty plea conviction for illegal re-entry, in violation of 8 U.S.C. § 1326 . We dismiss.

Mendoza-Valencia contends that the waiver of appeal contained in his plea agreement is unenforceable because his conviction was the result of vindictive prosecution. We disagree.

Without deciding whether a claim based on vindictive prosecution renders an otherwise valid waiver of appeal unenforceable, we conclude that the waiver at issue here is enforceable because Mendoza-Valencia has not presented facts warranting the appearance of vindictiveness. See United States v. Edmonds, 103 F.3d 822, 826 (9th Cir.1996) (stating that to prevail on a claim of vindictive prosecution, a defendant must show “... facts that warrant an appearance of such.”).

Mendoza-Valencia’s vindictiveness claim is based on the fact that the government charged him under § 1326 after he declined the initial offer to plead to a lesser offense under § 1325. “However, ... vindictiveness will not be presumed simply from the fact that a more severe charge followed, or even resulted from, the defendant’s exercise of a…