NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT DEC 07 2018 UNITED STATES OF AMERICA, No. 17-30256 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Plaintiff-Appellee, D.C. No. 1:16-cr-00141-BLW-1 v.

DANIEL RYAN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief Judge, Presiding

Submitted December 5, 2018** Seattle, Washington

Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.

Defendant Daniel Ryan appeals the below-Guidelines concurrent sentences

of 27 months that the district court imposed for importing and possessing with

intent to distribute MDMA, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),

952, and 960. We dismiss the appeal.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). The government did not breach the plea agreement by estimating, in its

discussion of the recommended sentence, the large quantity of drugs Defendant

had imported over a two-year period.1 First, the plea agreement expressly reserved

the government’s "right to fully allocute at sentencing regarding any sentencing

recommendation and to rely on any information [from various sources] in support

of its recommendation." The plea agreement’s recitation of a lower drug quantity

merely provided context for the government’s affirmative sentencing

recommendation of 37 months—the low end of the applicable Guidelines

range—for each of the two counts of conviction. Second, the government was

responding permissibly to Defendant’s request for a sentence of probation. See

United States v. Moschella, 727 F.3d 888, 892 (9th Cir. 2013) ("[T]he prosecutor’s

sentencing arguments were a fair response to Defendant’s request for a downward

variance from the low-end of the advisory Guidelines range.").

Defendant makes no other claim challenging the validity of the plea

agreement. Therefore, we enforce the appeal waiver in the plea agreement because

none of the exceptions applies.

Appeal DISMISSED.

1 The parties dispute whether we review for clear error or de novo the district court’s conclusion that no breach occurred. See United States v. Plascencia- Orozco, 852 F.3d 910, 916 (9th Cir.) (describing lack of certainty in our precedents), cert. denied, 138 S. Ct. 412 (2017). We need not resolve that dispute because, under either standard, Defendant’s argument is unpersuasive. 2