United States v. Jose Figueroa

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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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. 18-16151

Plaintiff-Appellee, D.C. Nos. 2:16-cv-01343-JCM v. 2:11-cr-00091-JCM-CWH-2

JOSE FIGUEROA, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted March 16, 2022**

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

Jose Figueroa 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, 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). Figueroa 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 Figueroa’s claim is barred by the collateral attack waiver

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

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

exception recognized 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 Figueroa’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 18-16151