FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-30375 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00174-2-

BROOKE MARIE BIBLER, a.k.a. SEH

Brooke Bibler, OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

March 9, 2007—Seattle, Washington

Filed May 4, 2007

Before: Betty B. Fletcher, Diarmuid F. O’Scannlain, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge B. Fletcher

4949
COUNSEL

E. June Lord, Great Falls, Montana, for the defendantappellant. 

Joseph E. Thaggard, Assistant United States Attorney, Great

Falls, Montana, for the plaintiff-appellee.

UNITED STATES v. BIBLER 4951
OPINION

B. FLETCHER, Circuit Judge: 

Brooke Bibler appeals her 80-month sentence, arguing that

the district court erred in failing to apply the safety valve

exception, 18 U.S.C. § 3553(f), when sentencing her. Even

assuming that the district court’s failure to apply § 3553(f)

was error, appellant waived her right to appeal the sentence

imposed by the district court. Therefore, we dismiss this

appeal.

I.

Appellant was arrested after police entered her house pursuant to a search warrant and found her in possession of

methamphetamine. In return for the government’s promise to

seek a downward departure under U.S.S.G. § 5K1.1, appellant

pled guilty to possession with intent to distribute more than

50 grams of methamphetamine, agreed to testify against her

boyfriend at his trial,1 and waived the right to appeal her sentence.2

 Appellant’s statute of conviction — 21 U.S.C.

§ 841(b)(1)(A)(viii) — established a minimum penalty of ten

years in prison, but the Pre-Sentence Report (“PSR”), following the advisory guideline range, recommended a 41-51

month sentence. 

1Appellant’s boyfriend was arrested at the same time and was charged

with a number of gun and drug-related crimes. 

2Bibler’s plea agreement stated “that the Court . . . may sentence the

Defendant to a sentence anywhere within the Guideline range, and may

depart upward or downward after it has, on the record, indicated what factors not contemplated by the Guidelines justify the upward or downward

departure.” The agreement further stated that “[i]n consideration for the

government’s motion pursuant to U.S.S.G. § 5K1.1 for a downward departure from the sentencing guidelines, if such a motion is made and the

Court accepts the plea agreement, the Defendant hereby waives all right

to appeal the sentence imposed by the Court.” 

4952 UNITED STATES v. BIBLER
According to the PSR, appellant was eligible for the safety

valve exception to her statutory minimum. See 18 U.S.C.

§ 3553(f); U.S.S.G. § 5C1.2(a). But at sentencing, the district

court held that the safety valve was not applicable postBooker, although the court held that 18 U.S.C. § 3553(e) did

apply. Section 3553(e) provides that “[u]pon motion of the

Government, the court shall have the authority to impose a

sentence below a level established by statute as a minimum

sentence so as to reflect a defendant’s substantial assistance

in the investigation or prosecution of another person who has

committed the offense.” Id. Applying § 3553(e), the district

court sentenced appellant to 80 months in prison, a term that

exceeded the PSR’s recommendation and the advisory guideline range of 41-51 months but fell well below the statutory

minimum sentence of 120 months. Appellant now challenges

the district court’s decision, arguing that her appellate waiver

should not preclude her from challenging the district court’s

decision because the district court erred in failing to apply the

safety valve statute.

II.

[1] We lack jurisdiction to hear an appeal when the appellant has agreed to a valid and enforceable waiver of her appellate rights. United States v. Jeronimo, 398 F.3d 1149, 1152-53

(9th Cir. 2005) (citing United States v. Vences, 169 F.3d 611,

613 (9th Cir. 1999)). Whether appellant has waived her right

to appeal is reviewed de novo. Id. at 1153. The waiver is

enforceable if appellant knowingly and voluntarily waives her

rights and the language of the waiver covers the grounds

raised on appeal. Id. Here, appellant does not dispute that her

waiver was knowing or voluntary. Nor can she dispute that

the terms of the agreement — which “waive[ ] all right to

appeal the sentence imposed by the Court” — encompass the

alleged error. Thus, this court lacks jurisdiction to consider

her appeal unless one of the “few well-established exceptions

to appeal waivers” applies. Id. at 1153 n.2. 

UNITED STATES v. BIBLER 4953
An appeal waiver will not apply if: 1) a defendant’s guilty

plea failed to comply with Fed. R. Crim. P. 11; 2) the sentencing judge informs a defendant that she retains the right to

appeal; 3) the sentence does not comport with the terms of the

plea agreement; or 4) the sentence violates the law. See

United States v. Portillo-Cano, 192 F.3d 1246, 1252 (9th Cir.

1999) (Rule 11); United States v. Buchanan, 59 F.3d 914,

917-18 (9th Cir. 1995) (judge informed defendant that he

retained his right to appeal); United States v. Bolinger, 940

F.2d 478, 479-80 (9th Cir. 1991) (sentence not in accord with

plea agreement); United States v. Gordon, 393 F.3d 1044,

1050 (9th Cir. 2004) (illegal sentence). 

[2] The only exception that arguably applies to the instant

case is the exception for illegal sentences. A sentence is illegal if it exceeds the permissible statutory penalty for the crime

or violates the Constitution. United States v. Fowler, 794 F.2d

1446, 1449 (9th Cir. 1986).3 Neither ground is applicable

here. Appellant does not allege a constitutional violation and

the sentence imposed by the district court fell below the statutory minimum. Even assuming that the district court erred in

failing to apply the safety valve statute, which this court has

held to be mandatory post-Booker, see United States v.

Cardenas-Juarez, 469 F.3d 1331 (9th Cir. 2006), this error

does not render appellant’s sentence illegal because § 3553(f)

does not lower the permissible statutory penalty for the crime.

All that the safety valve requires is that the district court sentence defendants without regard for the statutory minimum —

something that the district court did in this very case by granting appellant a downward departure under § 5K1.1 for sub3Fowler actually cites an additional ground under which a sentence may

be illegal: namely, that the sentence “is not authorized by the judgment of

conviction.” 794 F.2d at 1449. However, Pinedo v. United States, 347

F.2d 142 (9th Cir. 1965), the case cited by Fowler for this proposition,

defines “not authorized by the judgment of conviction” as a sentence that

exceeds the permissible statutory penalty. Id. at 148. Thus, this category

of sentence collapses into the first category cited above. 

4954 UNITED STATES v. BIBLER
stantial assistance.4

 Insofar as the district court sentenced

appellant to a term of years beneath the maximum allowed by

statute, the sentence is not “illegal” and cannot excuse the

waiver of appeal. 

[3] If defendants intend to preserve a larger subset of their

appellate rights, this must be bargained for in the plea agreement. For instance, defendants could reserve the right to

appeal in case of plain error, or in case the district court

issued a sentence that exceeded a particular period of time.

But absent such a bargained-for term, or the applicability of

an exception, a knowing and voluntary waiver of appellate

rights will preclude substantive appellate review in this court.

For the reasons articulated herein, the instant appeal is: 

DISMISSED.

4Of course, the district court premised its below-statute sentence on

§ 3553(e) and not § 3553(f) but this does not change the permissible sentencing range. 

UNITED STATES v. BIBLER 4955