Weeks

MEMORANDUM *

Jerry Earl Weeks (“Weeks”) appeals his sentence, contending that the district court erred in calculating his base offense level and criminal history category based on facts not found by a jury or admitted to by plea, relying on Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). He further contends that, for this reason, his waiver of the right to appeal does not apply.

Because a waiver of the right to appeal deprives this court of jurisdiction, see United States v. Joyce, 357 F.3d 921, 922, 925 (9th Cir.2004), we must first determine whether we lack jurisdiction. We retain jurisdiction to determine the validity and enforceability of a waiver of the right to appeal. See United States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir.1999).

Background

Weeks was charged with a single count of possession with intent to distribute cocaine base in an amount greater than five grams, in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(B). No prior conviction was alleged.

Weeks pled guilty pursuant to a plea agreement, which stated, in relevant part:

The plea agreement…