United States v. Camillo Ruiz-Diaz

Ninth Circuit

United States v. Camillo Ruiz-Diaz

668 F. App'x 289

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 22, 2016

Docket15-50479

StatusUnpublished

This text of 668 F. App'x 289 (United States v. Camillo Ruiz-Diaz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Camillo Ruiz-Diaz, 668 F. App'x 289 (9th Cir. 2016).

Pincite

Opinion

MEMORANDUM **

Camillo Andres Ruiz-Diaz appeals from the district court’s judgment and challenges his guilty-plea conviction and 71-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Ruiz-Diaz’s counsel has filed a brief stating that there are no grounds for relief, *290 along with a motion to withdraw as counsel of record. We treat Ruiz-Diaz’s application to file a second or successive 28 U.S.C. § 2255 motion, filed in case number 16-72188, as a pro se supplemental brief. The Clerk shall file a copy of that application in this appeal. No answering brief has been filed.

Ruiz-Diaz waived his right to appeal his conviction, with the exception of an appeal based on a claim that his plea was involuntary. He also waived the right to appeal his sentence, with the exception of the court’s .calculation of his criminal history category. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief as to the voluntariness of Ruiz-Diaz’s plea or the criminal history category calculated by the court. We therefore affirm as to those issues.

We dismiss the remainder of the appeal in light of the valid appeal waiver. Contrary to Ruiz-Diaz’s contention, his sentence was not unconstitutionally enhanced under Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 56.9 (2015). The 16-level enhancement to Ruiz-Diaz’s base offense level was triggered by his California Penal Code section 273.5(a) conviction, which qualifies as a categorical “crime of violence” because it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2(b)(l)(A)(ii), cmt. n.l(B)(iii); United States v. Ayala-Nicanor, 659 F.3d 744, 748 (9th Cir. 2011). Because the enhancement was not predicated on a residual clause like the one struck down in Johnson, there is no arguable issue as to whether Ruiz-Diaz’s sentence is illegal. We, therefore, enforce the appeal waiver. See United States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009).

Counsel’s motion to withdraw is GRANTED,

AFFIRMED in part; DISMISSED in part.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Free access — add to your briefcase to read the full text and ask questions with AI

MEMORANDUM **

Camillo Andres Ruiz-Diaz appeals from the district court’s judgment and challenges his guilty-plea conviction and 71-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Ruiz-Diaz’s counsel has filed a brief stating that there are no grounds for relief, *290 along with a motion to withdraw as counsel of record. We treat Ruiz-Diaz’s application to file a second or successive 28 U.S.C. § 2255 motion, filed in case number 16-72188, as a pro se supplemental brief. The Clerk shall file a copy of that application in this appeal. No answering brief has been filed.

Ruiz-Diaz waived his right to appeal his conviction, with the exception of an appeal based on a claim that his plea was involuntary. He also waived the right to appeal his sentence, with the exception of the court’s .calculation of his criminal history category. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief as to the voluntariness of Ruiz-Diaz’s plea or the criminal history category calculated by the court. We therefore affirm as to those issues.

We dismiss the remainder of the appeal in light of the valid appeal waiver. Contrary to Ruiz-Diaz’s contention, his sentence was not unconstitutionally enhanced under Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 56.9 (2015). The 16-level enhancement to Ruiz-Diaz’s base offense level was triggered by his California Penal Code section 273.5(a) conviction, which qualifies as a categorical “crime of violence” because it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2(b)(l)(A)(ii), cmt. n.l(B)(iii); United States v. Ayala-Nicanor, 659 F.3d 744, 748 (9th Cir. 2011). Because the enhancement was not predicated on a residual clause like the one struck down in Johnson, there is no arguable issue as to whether Ruiz-Diaz’s sentence is illegal. We, therefore, enforce the appeal waiver. See United States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009).

Counsel’s motion to withdraw is GRANTED,

AFFIRMED in part; DISMISSED in part.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Cite This Page — Counsel Stack

Bluebook (online)

668 F. App'x 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-camillo-ruiz-diaz-ca9-2016.

Opinion

Related

Cite This Page — Counsel Stack