United States v. Frank Goldstein

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2022
• Docket: 17-16187
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-16187

Plaintiff-Appellee, D.C. Nos. 2:16-cv-01449-JAD v. 2:10-cr-00525-JAD-PAL-1

FRANK PHILLIP GOLDSTEIN, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Submitted March 16, 2022**

Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.

The stay of this action, entered on July 27, 2021, is lifted.

Frank Phillip Goldstein appeals from the district court’s order denying his 28

U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We have

jurisdiction under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Hill,

* 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). 915 F.3d 669, 673 (9th Cir. 2019), we affirm.

Goldstein contends that his conviction and sentence under 18 U.S.C.

§ 924(c) must be vacated because Hobbs Act robbery is not a qualifying predicate

crime of violence. We need not address this argument because we agree with the

government that Goldstein’s claim is barred by the collateral attack waiver in his

plea agreement. Goldstein contends that the waiver is not enforceable because his

attack on his § 924(c) conviction and sentence falls within the exception for

challenges to purportedly illegal sentences discussed in United States v. Torres,

828 F.3d 1113, 1125 (9th Cir. 2016). However, this exception does not apply

where, as in this case, the challenge is to a purportedly illegal conviction. See

United States v. Goodall, 21 F.4th 555, 562-65 (9th Cir. 2021) (holding that the

illegal sentence exception to appellate waivers does not apply to challenges to

illegal convictions). Because the collateral attack waiver forecloses § 2255 relief,

we affirm the denial of Goldstein’s motion. See White v. Klitzkie, 281 F.3d 920,

922 (9th Cir. 2002) (“[W]e can affirm the district court on any ground supported

by the record.”).

AFFIRMED.

2 17-16187