United States v. Raymond Juarez

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2022
• Docket: 18-16145
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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. 18-16145

Plaintiff-Appellee, D.C. Nos. 2:16-cv-01376-JCM v. 2:11-cr-00091-JCM-CWH-1

RAYMOND JUAREZ, 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.

Raymond Juarez 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). Juarez contends that his conviction and sentence for violating 18 U.S.C.

§ 924(c) must be vacated because Hobbs Act robbery based on an aiding and

abetting theory of liability is not a qualifying predicate crime of violence. We need

not address this argument because we agree with the government that Juarez’s

§ 2255 motion is barred by the collateral attack waiver in his plea agreement.

Juarez contends that the waiver is not enforceable because his challenge to 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 contention is that

the conviction is illegal. 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 Juarez’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.”).

We treat Juarez’s additional argument as a motion to expand the certificate

of appealability. So treated, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala

v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).

AFFIRMED.

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