United States v. Jorge Rojo

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2022
• Docket: 20-15708
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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. 20-15708

Plaintiff-Appellee, D.C. Nos. 2:16-cv-01440-LDG v. 2:12-cr-00216-LDG-VCF-3

JORGE ROJO, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding

Submitted March 16, 2022**

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

Jorge Rojo appeals from the district court’s judgment 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, 915 F.3d

669, 673 (9th Cir. 2019), 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). Rojo contends that his conviction and sentence under 18 U.S.C. § 924(c)

must be vacated because aiding and abetting Hobbs Act robbery is not a qualifying

predicate crime of violence. We need not reach this argument because we agree

with the government that Rojo’s claim is barred by the collateral attack waiver in

his plea agreement. Rojo argues that the waiver is not enforceable because his

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

exception 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 Rojo’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 20-15708