United States v. Judel Espinoza-Gonzalez

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2022
• Docket: 17-15778
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-15778

Plaintiff-Appellee, D.C. Nos. 2:16-cv-01388-JCM v. 2:12-cr-00217-JCM-GWF-1

JUDEL ESPINOZA-GONZALEZ, 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.

Judel Espinoza-Gonzalez 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). Espinoza-Gonzalez contends that his conviction and sentence for

brandishing a firearm under 18 U.S.C. § 924(c) must be vacated because Hobbs

Act robbery, committed as a principal or an aider-and-abettor, is not a qualifying

predicate offense. We need not address this contention because we agree with the

government that it is waived by the valid collateral attack waiver in Espinoza-

Gonzalez’s plea agreement. Espinoza-Gonzalez maintains that, under United

States v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016), the appeal waiver does not

apply because his sentence is illegal. However, the “illegal sentence” exception

does not apply where, as here, the challenge is to the validity of a conviction. See

United States v. Goodall, 21 F.4th 555, 562-65 (9th Cir. 2021) (declining to extend

the illegal sentence exception to appellate waivers to challenges to illegal

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

affirm the denial of Espinoza-Gonzalez’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 17-15778