                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 20 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10585

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00080-CRW-
                                                 PAL-3
  v.

GARY COLOMBO,                                    MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Nevada
                 Charles R. Wolle, Senior District Judge, Presiding

                           Submitted December 9, 2011 **
                             San Francisco, California

Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        **
              The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for Northern Florida, sitting by designation.
      Gary Colombo pleaded guilty to participating in a massive wire fraud in

exchange for considerable favorable concessions by the government.

Notwithstanding his plea agreement’s waiver of appeal clause, he appeals on two

related grounds, neither of which we conclude is valid.

      1) Colombo attacks the validity of his plea including his appeal waiver on

the ground that the agreement lacked a valid factual basis. We disagree. In his

signed and counseled agreement, he unmistakably admitted participating in the

alleged conspiracy with the requisite state of mind. When asked by the district

court if he was pleading guilty because he was guilty, he said “I’d guess I’d have to

say yes.” Not only is this record devoid of plain error, but his plea agreement and

his plea allocution taken together demonstrate a clear factual basis for the plea to

which he admitted.

      2) Thus, his attempt to vitiate his waiver of the right to appeal fails. See

United States v. Michlin, 34 F.3d 896 (9th Cir. 1994); United States v. Baramdyka,

95 F.3d 840, 843 (9th Cir. 1996) (valid appeal waivers serve an “important

function in the judicial administrative process”).

      APPEAL DISMISSED.




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