United States v. Erica Umbay

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 8, 2021
• Docket: 20-10124
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10124

Plaintiff-Appellee, D.C. Nos. 2:17-cr-00219-TLN-1 v. 2:17-cr-00219-TLN

ERICA UMBAY, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted October 6, 2021** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and FRIEDLAND, Circuit Judges.

Defendant Erica Umbay appeals her conviction for being a felon in possession

of a firearm following her guilty plea to the charge. We affirm.

* 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). Umbay’s appeal is barred by the express terms of her plea agreement, where

she agreed “to give up the right to appeal any aspect of the guilty plea, the conviction,

and the sentence imposed in this case.” At the plea colloquy, the court confirmed

with Umbay that she was waiving her “right to collaterally attack or appeal all or

any part of this plea, conviction, and/or sentencing” and Umbay indicated she

understood. The district court found that her appellate waiver was knowingly and

voluntarily made, consistent with Rule 11(b) of the Federal Rules of Criminal

Procedure. See United States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999).

The appeal waiver must therefore be enforced. See United States v. Nunez, 223 F.3d

956, 958‒59 (9th Cir. 2000).

Nor did the court’s later advisement at sentencing undermine the clarity of her

waiver. The court correctly informed Umbay that there is a general right to appeal

a guilty plea conviction if it were unlawful or involuntary or if some other defect in

the proceedings existed, but reiterated that a defendant can waive those rights, and

reminded Umbay that she had “entered into a plea agreement which waives some or

all of your rights to appeal the sentence itself. Such waivers are generally

enforceable.” See United States v. Aguilar-Muniz, 156 F.3d 974, 977 (9th Cir. 1988)

(approving similar advisement).1

1 In any event, Umbay’s plea agreement had a sufficient factual basis. Fed. R. Crim. P. 11(b)(3); United States v. Younger, 398 F.3d 1179, 1193 (9th Cir. 2005)

2 AFFIRMED.

(finding sufficient connection to interstate commerce where defendant’s gun was manufactured in Massachusetts and found in defendant’s possession in California).