Villalobos

MEMORANDUM *

Juan Villalobos appeals his conviction and sentence following a guilty plea for conspiracy in violation of 18 U.S.C. § 371 and for the theft of goods and possession of stolen goods in interstate commerce and interstate shipments in violation of 18 U.S.C. § 659 .

Although Villalobos’s plea agreement waived the right to appeal his sentence if it were within the statutory maximum, the 87-month sentence on the conspiracy count (count one) was in excess of the five-year statutory maximum under 18 U.S.C. § 371 . The government acknowledges that there was a sentencing error on this count that requires correction, but argues that the error is merely technical and because the sentence as a whole was within the total statutory maximum, the plea waiver is not invalidated. We disagree. The waiver turns on the “statutory maximum sentence,” not the “total maximum sentence,” so Villalobos may appeal his sentence. See United States v. Haggard, 41 F.3d 1320, 1325 (9th Cir.1994).

However, Villalobos’s role was not improperly enhanced pursuant to U.S.S.G. § 3Bl.l(a). Excluding the undercover law enforcement officer, Villalobos was still an organizer or leader of criminal activity…