United States of America v. Lisiate Fainga, Aka C

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LISIATE FAINGA, AKA C,
Defendant-Appellant.
No. 21-10304
D.C. No. 1:19-cr-00157-JMS-2
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Submitted November 15, 2022**
Before: CANBY, CALLAHAN, and BADE, Circuit Judges.
Lisiate Fainga appeals from the district court’s judgment and challenges the
168-month sentence imposed following his guilty-plea convictions for conspiracy
to distribute and possess with intent to distribute methamphetamine and cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)-(B), and 846, and aiding and
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-10304
abetting the possession of methamphetamine and cocaine with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)-(B), and 18 U.S.C. § 2. We
dismiss.
Fainga contends that the district court erroneously applied a four-level
aggravating role adjustment under U.S.S.G. § 3B1.1(a). The government asserts
that this claim is encompassed by the appeal waiver in the parties’ plea agreement.
We agree. Fainga waived the right to challenge his sentence, and the manner in
which it was determined, as long as it did not exceed the Guidelines range
calculated by the district court. Because he received a sentence below that range,
the waiver bars this appeal. See United States v. Medina-Carrasco, 815 F.3d 457,
462 (9th Cir. 2015).
Fainga’s assertion that he can nevertheless appeal because his sentence is
illegal is unavailing. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007)
(defining the illegal sentence exception to include only a sentence that is
unconstitutional or that exceeds the statutory maximum for the offense).
Moreover, even assuming there is a miscarriage of justice exception to the
enforcement of an appellate waiver, enforcing the waiver in this appeal of Fainga’s
below-Guidelines sentence does not result in a miscarriage of justice.
DISMISSED.

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