United States v. Cameron Muhlenberg

667 F. App'x 615

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2016
• Docket: 14-10566
• Status: Unpublished

Opinion

MEMORANDUM **

Cameron Muhlenberg appeals from his guilty plea conviction for four counts of interfering with commerce by armed robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and one count of use of a firearm in violation of 18 U.S.C. § 924(c), arising from his participation in the armed robberies of four liquor and convenience stores. As the parties are familiar with the facts, we do not recount them here. We dismiss the appeal.

Muhlenberg argues that his guilty plea pursuant to a plea agreement, which contained an appeal waiver, does not bar this appeal because he is challenging “the right not to be haled into court at all.” United States v. Broce, 488 U.S. 568, 574-75, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (citation omitted). However, the Supreme Court has limited this exception to “those cases in which the district court could determine that the government lacked the power to bring the indictment at the time of accepting the guilty plea from the face of the indictment or from the record.” United States v. Cortez, 973 F.2d 764, 767 (9th Cir. 1992) (emphasis omitted) (citing Broce, 488 U.S. at 569, 576, 109 S.Ct. 757). Muhlen-berg’s appeal does not fall into this exception because his as-applied challenge to the constitutionality of the Hobbs Act requires further evidence and cannot be determined from the face of the indictment or from the record.

Accordingly, we dismiss Muhlenberg’s appeal in light of his guilty plea pursuant to a plea agreement with an appeal waiver.

We deny Muhlenberg’s motion- for leave to submit supplemental briefing.

DISMISSED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.