Flores-Valenzuela

MEMORANDUM **

Manuel de Jesus Flores-Valenzuela pled guilty to illegal reentry in violation of 8 U.S.C. § 1326 . He now appeals his sentence of 30 months imprisonment. The Government argues that Mr. Flores cannot properly bring this appeal since he knowingly waived his right to appeal as part of his plea bargain. We agree and dismiss the appeal.

The plea agreement signed by Mr. Flores provided that he would waive his right to appeal both his conviction and his sentence, as long as the resulting sentence was consistent with the range contemplated in the plea agreement. Because it was, the waiver was valid. See United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991).

The plea agreement left open the possibility of an additional downward departure under U.S.S.G. § 2LI.2, Application Note 5 (now amended), but such a departure is discretionary. The district court’s decision not to grant a downward departure here, based on its stated concern with Mr. Flores’s criminal history, did not void the plea agreement and did not negate Mr. Flores’s waiver.

The plea agreement explicitly stated, “If the court departs from the terms and conditions set forth in this plea agreement, either…