United States v. Sergio Rafael Gonzalez

ORDER

On June 1, 1992, appellee moved to dismiss this appeal on the basis that appellant had waived his right to appeal under the provisions of a plea agreement. On June 26, 1992, a panel of this court ordered appellant to submit a statement of the issues he intended to raise on appeal and to show cause why his appeal should not be dismissed. See United States v. Navarro-Botello, 912 F.2d 318 (9th Cir.1990).

In his response, appellant contends, among other issues, that the government breached the plea agreement by opposing a two-level reduction in sentencing for acceptance of responsibility.

If appellant’s contention is true, appellant may be entitled to specific performance or some other relief. See United States v. Goroza, 941 F.2d 905 (1991). We do not decide the merits of appellant’s contention that the government breached the plea agreement.1 However, appellant’s contention calls into question the validity of the waiver. This issue should be resolved by a merits panel, along with any other issues that the merits panel determines are properly before it. Therefore, appellee’s motion to dismiss is denied. Cf. United States v. Hooten, 693 F.2d 857 (9th Cir.1982).

Appellant’s opening brief and excerpts of record are due January 11,1993; appellee’s brief is due February 10, 1993; the reply brief, if any, is due February 24, 1993.