United States v. Miguel Martinez-Alejandrez , 458 F. App'x 594 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10560
Plaintiff - Appellee, D.C. No. 4:10-cr-00066-SBA
v.
MEMORANDUM *
MIGUEL MARTINEZ-ALEJANDREZ,
a.k.a. Miguel Martinez Alejandrez, a.k.a.
Miguel Martinez, a.k.a. Miguel A.
Martinez, a.k.a. Miguel Alejandrez
Martinez, a.k.a. Miguel Alejandro
Martinez,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted November 8, 2011 **
Before: O’SCANNLAIN, TASHIMA, and GRABER, Circuit Judges.
Miguel Martinez-Alejandrez appeals from his guilty-plea conviction and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
30-month sentence imposed for being a deported alien found in the United States,
in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We
dismiss in light of the valid appeal waiver, but we remand to the district court to
correct the judgment.
Martinez-Alejandrez contends that his trial counsel provided ineffective
assistance by failing to pursue a statute of limitation defense or to contest the
16-level enhancement. He further contends that the appeal waiver in his plea
agreement does not bar these claims because the waiver was not knowingly and
voluntarily made.
Although the appeal waiver allows Martinez-Alejandrez to raise an
ineffective assistance of counsel claim in a 28 U.S.C. § 2255 motion, it expressly
bars the instant appeal. See United States v. Nunez, 223 F.3d 956, 959 (9th Cir.
2000) (waiver of right to appeal conviction or sentence applies to ineffective
assistance of counsel claims, though such claims may be raised in a collateral
proceedings). Furthermore, the record reflects that Martinez-Alejandrez’s waiver
was knowingly and voluntarily made. To the extent Martinez-Alejandrez argues
that his waiver was not knowing and voluntary because of his counsel’s ineffective
assistance, we decline to consider that contention on direct appeal. See United
States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).
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In accordance with United States v. Rivera-Sanchez , 222 F.3d 1057, 1062
(9th Cir. 2000), we remand the case to the district court with instructions that it
delete from the judgment the reference to section 1326(b). See United States v.
Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to
delete the reference to section 1326(b)).
DISMISSED; REMANDED to correct judgment.
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