United States v. Ugo Chijioke

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50188

Plaintiff-Appellee, D.C. No. 2:17-cr-00475-MWF-1

v. MEMORANDUM* UGO CHIJIOKE, AKA Eugene Akabueze, AKA Ugo Okorie Chijioke, AKA Olde English, AKA Paulims Ezengo, AKA Kenneth Mails, AKA Kenneth E. Nails, AKA Kenneth Everett Nails, AKA Ugochukwu John Okore,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted May 6, 2020**

Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.

Ugo Chijioke appeals from the district court’s amended judgment, which

was entered upon remand from this court. We have jurisdiction under 28 U.S.C.

* 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). § 1291, and we dismiss in part, and remand in part.

Chijioke contends, and the government concedes, that the district court erred

by imposing standard conditions of supervised release five, six, and fourteen,

which are unconstitutionally vague. See United States v. Evans, 883 F.3d 1154,

1162-64 (9th Cir.), cert. denied, 139 S. Ct. 133 (2018). It appears that the district

court inadvertently failed to amend those conditions as directed in our prior

remand. See United States v. Chijioke, 749 Fed. App’x 564 (9th Cir. 2019).

Accordingly, we remand for the district court to enter a second amended judgment

modifying conditions five, six, and fourteen consistent with Evans.

Chijioke also asserts that the district court violated his Sixth Amendment

right to be present at sentencing by resentencing him in absentia. We agree with

the government that this claim is barred by the appeal waiver in Chijioke’s plea

agreement. Although an appellate waiver is not enforceable if a sentence is illegal,

see United States v. Ornelas, 828 F.3d 1018, 1020-21 (9th Cir. 2016), Chijioke’s

sentence is not unlawful because he entered into a stipulation agreeing that the

judgment could be modified without a hearing. See Fed. R. Crim. P. 32.1(c)(2)

(supervised release conditions can be modified without a hearing if the defendant

waives the hearing or “the relief sought is favorable” to the defendant and does not

extend the term of supervised release). Accordingly, we dismiss this portion of

Chijioke’s appeal pursuant to the valid appeal waiver. See Ornelas, 828 F.3d at

2 19-50188 1021-23 (invoking appeal waiver and dismissing because in absentia sentencing

hearing did not violate defendant’s constitutional rights).

DISMISSED in part; REMANDED with instructions.

3 19-50188