United States v. Richard Sapien

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 28, 2019
• Docket: 18-10112
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10112

Plaintiff-Appellee, D.C. No. 1:15-cr-00069-DAD- BAM-1 v.

RICHARD SAPIEN, AKA Richard Casarez MEMORANDUM* Sapien, AKA Richard Casarez Sapien, Jr., AKA Ricky Sapien,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Richard Sapien appeals from the district court’s judgment and challenges the

100-month sentence imposed following his guilty-plea conviction for being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We dismiss.

* 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). Sapien argues that the district court erred by enhancing his base offense

level under U.S.S.G. § 2K2.1(a)(2), contending that his prior convictions for

assault with a deadly weapon under California Penal Code § 245(a)(1) are not

crimes of violence. The government contends that this appeal is barred by a valid

appeal waiver. We review the enforceability of an appeal waiver de novo. See

United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).

The language of the appeal waiver in Sapien’s plea agreement

unambiguously encompasses the claims he seeks to raise. See id. at 986. Contrary

to his contention, Sapien’s sentence is not illegal. See United States v. Bibler, 495

F.3d 621, 624 (9th Cir. 2007) (“A sentence is illegal if it exceeds the permissible

statutory penalty for the crime or violates the Constitution.”); see also United

States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir. 2018) (a conviction

under California Penal Code § 245(a)(1) is categorically a crime of violence).

Moreover, the record does not support Sapien’s claim that the district court

provided an unqualified advisement at the sentencing hearing that he had a right to

appeal. See United States v. Arias-Espinosa, 704 F.3d 616, 619-20 (9th Cir. 2012).

Finally, we decline to reach on direct appeal Sapien’s claim that his counsel was

ineffective. See United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).

Accordingly, we dismiss pursuant to the valid waiver. See id. at 1260.

DISMISSED.

2 18-10112