60 F.3d 835

MEMORANDUM**

Fidel De La Garza appeals his sentence under the Sentencing Guidelines for his guilty plea conviction of unlawful reentry into the United States after deportation following an aggravated felony, in violation of 8 U.S.C. Sec. 1326. De La Garza contends that drug trafficking offenses are not “aggravated felonies,” as defined by 8 U.S.C. Sec. 1101(a)(43), unless a sentence of at least five years was imposed. De La Garza concedes that his contention was rejected by this court in United States v. Arzate-Nunez, 18 F.3d 730 (9th Cir. 1994), but urges the court to reconsider its decision.1

One three judge panel of this court cannot overrule the decision of a prior panel. Accordingly, we are bound by our holding in Arzate-Nunez. United States v. Gay, 967 F.2d 322, 327 (9th Cir.), cert. denied, 113 S. Ct. 359 (1992).

AFFIRMED.

MEMORANDUM**

Lee Roy Hannon, Jr. appeals his sentence under the Sentencing Guidelines imposed following his guilty plea to eighteen counts of submitting a false claim upon the United States and aiding and abetting, in violation of 18 U.S.C. Secs. 287 and 2. Hannon contends that the district court erred in departing upward on the ground that Hannon’s criminal history score did not adequately reflect the seriousness of his past criminal conduct.

The government argues that this appeal should be dismissed because Hannon waived his right to appeal in his plea agreement. We agree. We reject Hannon’s contention that he did not waive his right to appeal the district court’s upward departure for under-representation of criminal history where the plea agreement provided that the government would not recommend an upward departure on that basis. In the plea agreement, Hannon expressly waived “the right to appeal the sentence in this case, by pleading guilty pursuant to this Plea Agreement —.” The agreement stated further that it was his “knowing and voluntary intention to” waive his right to appeal. The agreement also stated that Hannon “understands that none of the foregoing recommendations is binding upon the Court, which retains the power to sentence the defendant to the maximum allowable penalty.” Hannon does not dispute that the government fully complied with the terms of the plea agreement. In these circumstances, we lack jurisdiction to review the sentence. See United States v. Bolinger, 940 F.2d 478, 479-480 (9th Cir. 1991).

DISMISSED.